Kind readers, I must address the most profound legal controversy to have yet emerged in this new century. No, it’s not Ferguson or Marriage Equality, but rather a much more urgent issue: Does Katy Perry have a protectable legal interest in the hilarious dancing sharks in her Super Bowl halftime show? You may laugh, but the perky young singer has had her lawyers send a cease and desist letter to Fernando Sosa, the guy who made the 3-D printed shark and who is making his design plans available on-line. That’s right! If you have a 3D printer, you can make your own dancing left shark (unless Sosa caves in to Ms. Perry’s threats).
But Sosa may not have to remove his plans from circulation! My good friend, NYU law professor Chris Sprigman has taken on Sosa as a client and is engaging in a battle of words with Perry’s lawyers. The controversy has gone viral over the internet.
Underneath the bluster, however, is a very interesting legal issue: To what extent are costumes protected by copyright law? The generally accepted position is that clothing is not protected by copyright. The copyright act contains a long list of what’s protected: literary works; musical works; plays; choreographic works; pictorial, graphic, and sculptural works; movies; sound recordings; and architectural works. Where would clothes fit? Well, the best you can do is sculptural works—they are sort of thin 3D sculpture. However, within that category, costume designers run into a problem called the “useful article” doctrine which disqualifies utilitarian sculptural works. This is why your cool office chair, for example, is not protected as a sculptural work. It is generally accepted that clothing is unprotected for the same reason. Its design is intrinsic to its function. Oddly, a perfect blend of form and function is by definition unprotectible under the useful article doctrine.
But, of course, this is copyright law, so we have to have another complicating twist. It turns out that sometimes, we can conceptually separate the aesthetically pleasing part of a design from the useful part of a design. Think of your chair. Maybe it has an intricate scrolly pattern carved into its wooden back. Can your brain separate the functional aspects of the chair from the aesthetic function of the carving? Well, federal judges can, so the carving, but only the carving, is protected. Same with the cool picture of Che Guevara on your t-shirt. The shape of your shirt isn’t protected, but the embossed picture is. This explains why a beautifully proportioned dress is unprotected while the deathshead on the back of your biker jacket might be.
Well, that brings us back to the dancing sharks at the Super Bowl. Can we conceptually separate the aesthetic features of the plush shark from the useful ones? The sharkiness from the costume-i-ness?
Well, browsing through the case law today, I found a little bit of help. It turns out that many courts have accepted stuffed animals as protected soft sculptures. If copyright protects a stuffed horse name “Spark Plug” and a chimp named “Zippy,” then why not a dancing shark named by acclamation of the internet as “Left Shark”? [There seems little doubt that an originally crafted large stuffed shark sold by FAO Schwarz in its toy store would be protected by copyright, albeit thinly (anyone else could independently create their own shark—copyright only protects against actual copying after all).] So, why should an otherwise protectable soft sculpture, like our large plush shark, be rendered unprotectible just because we hollow out the inside to fit a person and add some legs? Imagine the process . . . can you, in your head, conceptually separate what’s aesthetically pleasing about the result from what’s useful?
This rapidly turns pretty esoteric, as you can see, but the Second Circuit Court of Appeals provided some help a couple years ago by focusing on the intent of the designer asking how many of the design choices were driven by functional considerations. As far as Left Shark goes, it seems to me that only the legs are driven by the need to dance. The rest of the design seems the result of creative choices. Of course, this just means that I think the costume may be protectable. Given that Ms. Perry doesn’t claim to have designed it, she’s still got trouble ahead.