Will Katy Perry's Copyright Claim in "Left Shark" Tank?

Arguably the biggest breakout star to emerge from Super Bowl XLIX, "Left Shark" famously botched the choreography as a backup dancer for Katy Perry and became an overnight viral sensation. Naturally, everyone wanted a piece of Left Shark, and t-shirts, figurines, and even cookie-cutters flew onto the market. Last Wednesday, Katy Perry's attorneys sent a cease and desist letter to one of the vendors looking to cash in on Left Shark mania.

Fernando Sosa, a 3D printing artist, created 3D figurines of Left Shark that he displayed and offered for sale online. The letter from Perry's attorneys asserted that Sosa's shark figurines infringed Perry's copyright in the shark images and costume, and demanded that Sosa stop selling his 3D sculptures.

Essentially, what this case comes down to is whether a copyright claim can be asserted in "Left Shark" to begin with. The short answer to that question is likely "No." It has long been held that costumes are considered uncopyrightable useful articles". In 1991, the Library of Congress issued a policy decision on the registrability of costume designs, finding that, as useful articles, they were not entitled to copyright protection. Registrability of Costume Designs, 56 Fed. Reg. 56, 530 (Nov. 5, 1991). This position was recently reiterated in the Compendium of U.S. Copyright Office Practices Third Edition, December 22, 2014, 924.3(A)(2).

Perry's attorneys have cited the Compendium as support for their claim that the shark costume features "conceptually separable" elements that are copyrightable. A conceptually separable element is one that, while not capable of being physically separated from the useful article, can be visually separated, and exist side-by-side with the useful article. For example, a design etched into a chair that is reproduced as a drawing on a piece of paper is a conceptually separable design that may be copyrightable. It is hard to imagine what element, if any, is conceptually separate from the Left Shark costume.

In a strange twist, Perry's company, Killer Queen, LLC, filed a trademark application for the Left Shark Design on February 6, 2015 (Ser. No. 86/527,730), which used Sosa's figurine as the drawing of the mark. Did Killer Queen infringe Sosa's copyright in the Left Shark sculpture? Unsurprisingly, the application was expressly abandoned only a few days later.