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Katy Perry's Lawyers Send Cease-and-Desist Over 'Left Shark'

By Mark Wilson, Esq. on February 10, 2015 9:20 AM

A scant few days after Katy Perry's performance at the Super Bowl halftime show, the Internet was awash with memes unrelated to Perry, "Deflategate," or even the poor planning that went into throwing the ball at the one-yard line instead of rushing it, leading to the New England Patriots' win.

Nope, all eyes were on that dancing "Left Shark."

During a performance of her song "California Gurls," Perry was flanked by two dancers in shark costumes. Except that the shark on the right seemed to know the dance moves and the one on the left didn't appear so confident. "Left Shark" spawned memes and merchandise ...

Has 'Left Shark' Jumped the ... Well, You Know

... and the threat of a potential lawsuit. For only $25, Florida designer Fernando Sosa began offering 3-D printed "Left Shark" figurines. Neat idea -- except that he heard Perry's lawyers roar, in the form of a cease-and-desist nastygram from Steve Plinio at GreenbergTraurig, which claimed that the shark images and costumes are copyrighted.

Last week, when Sosa received the letter, he said he would be returning to his usual business in 3D-printed figures of politicians: "So I probably will go back to doing pieces about them and other world leaders. All this lawyer crap is very stressful," he told CNN.

Turns out he had a change of heart, though. Sosa has enlisted the help of Christopher Jon Sprigman, a professor at NYU School of Law who specializes in copyrights and IP. Sprigman had his own questions for Perry and her lawyers, including why the shark costumes are copyrightable. "As you likely know, federal courts and the United States Copyright Office have made clear that costumes are not generally copyrightable," he said.

He also wondered why Perry, specifically, claims to own the rights to the shark costumes. "Did Katy Perry design the Left Shark costume? If so, when? If not, who did? Did that person transfer any copyright interest he or she might have (in reality, very likely none) to Katy Perry? If so, when?"

This Is How We Sue

Yes, GCs, "Left Shark-gate" has a lesson for you, and it's not just about attending all the rehearsals. It's that some amount of judgment has to go into decisions about sending demand letters. Back in the halcyon days, you could fire off cease-and-desist letters all day long, relying on the sheer intimidation power of that "Esq." behind your name to get people to stop doing things they arguably might have had a right to do.

The Internet mucked all that up. Turns out you can't intimidate people into monetizing everything anymore. And that's OK: Let the Internet have its fun sometimes. Sure, you need to defend your trademarks and enforce your IP rights, but seriously -- how does Katy Perry have ownership over a freaking shark costume?

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