The Volokh Conspiracy

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Volokh Conspiracy

Katy Perry jumps the [copyright-protected?] shark

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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.]