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The 'Left Shark' Cease-and-Desist Battle, Round 2

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By Mark Wilson, Esq. on February 13, 2015 7:15 AM

It's Round 2 as #LeftSharkGate continues unabated, and appears no signs of stopping.

As you may recall, Katy Perry's lawyers threatened to sue Fernando Sosa for creating figurines of the less-than-graceful "Left Shark" that danced along with Perry during the Super Bowl XLIX halftime show.

Sosa got himself a lawyer: Prof. Christopher Jon Sprigman of NYU School of Law, a specialist in IP. A few days later, Perry's lawyers responded, and they're having none of it.

Yes, Drawings Are Copyrightable, But ...

In a new letter to Sprigman, Steve Plinio of GreenbergTraurig doubled down on claims that the "Left Shark" costume is copyrighted. How is that? Apparently because the costume was based on drawings, and those drawings are copyrighted.

In a response, Sprigman called that argument horsepucky, and obviously so: "Sketches of Left Shark may be copyrightable, but that doesn't make the Left Shark costume copyrightable."

Garments generally aren't copyrightable because they're a "useful article." That means the design, color, and measurements of any piece of clothing -- including the Left Shark costume -- aren't owned by anybody. This problem often happens in reverse when a small-time fashion designer's outfits get poached by much larger companies. (Of course, they don't sue because, unlike Katy Perry, they can't afford it.)

As we've seen from the recent Converse lawsuits, trade dress is protected when it comes to clothes, but that argument would require a strong consumer association between Katy Perry and Left Shark, and that really isn't in the cards.

Left Shark Is His Own Shark

Plinio also claimed in his new letter that Sosa would be on the hook for unfair competition on the ground that "any commercial value that [Sosa's] sculptures have derives solely from the public's association of them with Ms. Perry."

That elicited only more snark from Sprigman, who replied: "The Internet decided that Left Shark's flubbed dance moves were hilarious. It gave Left Shark his name, and then it made him into a meme. Left Shark isn't really about Katy Perry. Unless you're telling me that she planned this whole thing in advance."

Both Plinio and Sprigman appear not to be backing down. The ultimate determinant of how this goes will be public opinion. The public appears to love Left Shark, and they don't take kindly to people being bullied by lawyers. Part of the problem is that, in this Web 2.0 world we live in, content that goes "viral" is largely out of corporate control, and once unleashed, can't be contained, except by bogus copyright claims, which Sosa is fighting.

At some point, this non-litigation is going to (pardon the pun) jump the shark. Hopefully, at that time, Perry's lawyers will realize that there's almost zero benefit to be gained and our long national nightmare of LeftSharkGate can be over.

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