Katy Perry jumps the [copyright-protected?] shark

|The Volokh Conspiracy |

Fernando Soso is a "political sculptor" who designs 3D-printable figurines and sells them from various websites (including Etsy.com and shapeways.com). He recently started selling a "left shark" figurine, based on the now-infamous costume worn by one of Katy Perry's dancers (who was rather comically flubbing his/her steps) during the Super Bowl halftime show. He received a cease-and-desist letter from Perry's lawyers (Greenberg Traurig), asserting a copyright interest in Perry's costumes and threatening Sosa with legal action unless he immediately stops distributing the figurine.

Left Shark desk figurine

What sets this a bit apart from the zillions of takedown notices coursing through the Internet at any given moment is that Sosa has been fighting back, and that he's represented by Chris Sprigman, a law prof at NYU Law School. Sprigman's letter to Greenberg Traurig is a very nice piece of work—worth reading, especially by any aspiring lawyers out there. Many takedown notices are based on little more than a claim that "You copied something I can get a lot of money from." But Sprigman nicely points out that that's not enough; a copyright claim has to show that (a) there's something copyrightable in whatever was copied, and (b) the claimant has to actually own the copyright in whatever was copied—and it's not at all clear here that Perry can establish either of those (especially given the general rule, well-known in copyright circles, that costumes are generally not copyrightable because they are "useful articles" that copyright does not cover). Worth a look if you find these quirky copyright disputes of interest.

[And an update—there's been some additional correspondence between Sprigman and Perry's lawyers, reported on at Techdirt here.]

Advertisement