It’s been almost a week since Katy Perry’s Super Bowl halftime show, and since her now infamous star, Left Shark, danced into screens and hearts across the country. But Perry’s lawyers were quick to put the kibosh on anyone trying to capitalize on Left Shark’s fame.
Like Fernando Sosa, who runs Political Sculptor and started selling figurines of Left Shark two days after the Super Bowl. Unfortunately, he was met with a swift cease and desist notice from Perry’s lawyers, who made it clear that he was infringing on copyrighted work. And so the great Left Shark legal battle was off–what a time to be alive.
Is there safe harbor for Left Sharks?
Shapeways, the site Sosa was originally selling the figurine through immediately complied with the cease and desist, and for good reason: it’s not immediately clear if they’d be liable in this arena. About this time last year, a judge ruled that CafePress, a site that allows users to set up shops and sell things, may also be responsible in infringing on the copyright of a wildlife photographer. In fact, CafePress has run into this problem more than once. Jessica Kaufman writes for Socially Aware blog on an earlier case:
…you can sue online service providers for trademark infringement based on user-generated content and you just might win. The Digital Millennium Copyright Act (DMCA) creates a safe harbor for online service providers who promptly remove user-generated copyright-infringing content after receiving takedown notices, but there is no equivalent safe harbor for content that infringes trademarks.
…Social media sites in particular may be easy targets for trademark claims based on user-generated content. Such sites often host “community pages” that serve as fan pages for brands without any authorization from the companies involved (for example, compare this official Facebook pageestablished by a trademark holder with this community page run by a fan). In the wake of the case against CafePress, social media sites and other websites that host user-generated content should be aware of these trademark-related risks and the fact that the DMCA safe harbors do not apply to trademark claims.
Shapeways, like CafePress, features user generated content for sale, and likely fears that it could end up in the same hot water that CafePress has found itself in a number of times. As it stands, there’s very little to protect them from litigation, so it’s not surprising they’re keeping their hands as clean as possible.
Copyrightable or left in public domain?
Though Shapeways complied Sosa only moved the 3D design file to Thingiverse as a free download, advising users to download it fast before it got taken down too. But Sosa soon got help from a lawyer who said that he may have a case after all.
@xor @mathewi @sarahjeong S/he is intrinsically free. And also I think free in the narrower sense of being uncopyrightable.
— Christopher Sprigman (@CJSprigman) February 5, 2015
Essentially, Sprigman’s point is that in 17 U.S.C. § 106, costumes are considered “useful articles,” which is geared more towards serving a purpose and not an aesthetic, and so they’re not protected the same way a fashion idea or character would be. If he’s right Sosa could start selling again very soon without even needing to wade into the intricacies of 3D printing law. Additionally, because it remains unclear whether anything from the halftime show (dancing shark or otherwise) is registered at all–and to whom it would be registered–it would it hard to file a lawsuit.
LXBN reached out to Sprigman, who declined to comment since it looks like he may become involved in Sosa’s case.
Give meme money?
This case also gives a glimpse into the new world of law that the Internet brings. The halftime show unleashed a whole slew of Left Shark memes on the Internet, raising its public profile So where’s the line when someone tries to make money off of a meme?
Typically the fight falls on the side of the person who created (which could be the subject or the uploader) the meme. When Warner Bros. used two cat memes in a video game without permission they lost their case, while the creator of the not safe for work honey badger video found some victory fighting those who violated his copyright claim.
However it’s rare to see a company coming after someone selling things based on their meme. The last time was when a film production company went after the Youtube trend of humorously messing with the subtitles in their World War II movie. For a while they waged the battle against the Internet, but ultimately admitted defeat and embraced the new world order by reportedly placing ads over the parodies instead. And since that’s possibly the only time a company with a history of trying to fight memes using their work it doesn’t look good for Perry and her legal team. Perhaps they should consider the words of Amanda Parks on The Brand Protection Blog, who notes that there are still a lot of things to work out around with sharing on the Internet, and copyright law would do well to be flexible:
As content-sharing on social media is unlikely to abate, copyright owners should evaluate how, or whether, to take action. Some might consider taking proactive steps to prevent their content from being shared, such as displaying copyright notices on websites or applying watermarks to images.
Others may actually benefit from having their work shared on social networks; there is arguably no better advertising and no faster way to be “discovered.”
…While we wait to see whether the proposed fair use exception will become law, it is worth evaluating whether something can be gained by swimming with, not against, the social media current.
We’ll see if Perry’s lawyers are able to stop Sosa’s figurines from getting out into the world. But given that there’s already more Left Shark products popping up all over the Internet, they’re going to need a bigger claim.