In the afterglow of the spectacle of this year’s confusing yet captivating Super Bowl halftime show (Go Pats!), we mused about the art law ramifications of the unexpected birth of the visual Left Shark phenomenon, the costumed dancer who was famous within seconds for a certain lack of enthusiasm.  The initial discussion focused on whether the dancer’s costume design within the show itself allowed Perry to control its use as a matter of copyright.  The recipient of one cease and desist letter disagreed, both humorously and persuasively, principally based on precedents about costume designs, and on the nature of the use itself.  Left unresolved were any arguments about fair use, but those seemed clear to us as well: a T-shirt, Twitter post, internet meme, SportsCenter commercial, etc., that evokes some level of post-modern world-weariness in contrast to Perry’s boisterous beach-party theme should be transformative enough even for the strictest of copyright constructionists.  It is not clear on the public record though how much of a fight there has been over that point.

Click here to view image.

Click here to view image.

Now the other shoe has dropped on the very day that the Patriots visited the White House to honor their victory.  Katy Perry’s application to trademark has been denied by the U.S. Patent and Trademark Office.  Even if Perry didn’t own a copyright in Left Shark, it’s possible that she could own a protectable trademark or assert enforceable trade dress in it.  As my Sullivan & Worcester LLP colleagues over at Trending Trademarks have explained eloquently in the past, “A ‘trademarked look’ is not just a popular saying. Developing and consistently using a distinctive look and lay-out for products and services” is the touchstone.  As for trade dress, the fame and associations related to Left Shark’s appearance have developed not with respect to Perry’s music or the halftime show choreography, but as an independent and largely inexplicable phenomenon.

By this token, Perry had no chance.  “Left Shark” is an entirely satirical, silly Internet fad.  No one could seriously claim that until that dancer got out of sync with the other shark, that the designers of the show actually meant to create an ironic meme.

And so, readers, Left Shark is yours.