The Super Bowl is America’s biggest civic holiday, in many ways.  The country’s most popular sport combines with the country’s desire just to sit and watch television in a once-a-year event.  This year did not disappoint, in one of the most exciting contests in the game’s history, the New England Patriots prevailed over the Seattle Seahawks 28-24, sealed by a game-winning drive by Tom Brady and a last-minute interception by Malcom Butler.  My partner Jay Darby recaps his thoughts on the game here

In addition and more relevant to present purposes, the traditional halftime extravaganza (“Hooray for Everything,” anyone?) featured a current pop star, this year Katy Perry.  In the midst of a tense game (the Art Law Report is a huge Patriots fan), I will confess my own reaction to the halftime show ranged from escapism to curiosity to confusion, to just being mesmerized.  By the time the dancing sharks came on the stage, I found myself in a similar state to the Beijing Olympics opening ceremony in 2008: I didn’t know what it meant, but I absolutely could not look away. 

As the Internet is wont to do, a meme was born instantly after people observed that the shark to the left of Perry (on her right) was dancing with less gusto than its counterpart to the right.  And so, Left Shark was born.  As a medium to project Internet silliness onto, it could scarcely have been more perfect.  Left Shark flip books, a Left Shark Tumblr page, Left Shark existential reflections, and, inevitably, Left Shark merchandise and costumes followed within hours. 

The latter point was apparently more than Perry’s branding team was willing to accept.  A demand letter soon surfaced in which Perry’s attorneys demanded that Fernando Sosa, the maker of a 3-D printed sculpture of Left Share cease marketing it.  Perry’s lawyers asserted that 1) Left Shark was a creation; 2) by Perry; and 3) protected by copyright.  Conceding that while a costume alone is not copyrightable, they insisted that the creative elements leading to that costume (drawings, designs) were, and protected the Left Shark from copying. On that basis, they argued, unauthorized reproductions were infringing.

As with any good Internet argument, there was a response.  Sosa’s lawyer Chris Sprigman of NYU Law School dished out a healthy dose of sarcasm in his response, which included:

First, you claim that the Left Shark costume is copyrightable because it is based on the “multiple shark drawings” you say were produced by Katy Perry’s team. The drawings are irrelevant. Sketches of Left Shark may be copyrightable, but that doesn’t make the Left Shark costume copyrightable.

This is correct.  Laying it on a bit thicker, he stated:

When I look at the Left Shark costume, I don’t see “conceptually separable elements.” I see a shark costume. I am obliged to admit that, unlike any shark I’ve seen, the Left Shark costume has legs (and a quick Google search reveals that many other shark costumes have legs). But that doesn’t make the Left Shark costume copyrightable. The Left Shark costume has legs because the person inside of it has legs. The legs are not “conceptually separable” from the Left Shark costume. They are integral to its function as a costume.

Lastly, Sprigman points out that “Left Shark” as a concept did not exist until the halftime show took place and the name caught fire on the Web, that nowhere in the show itself (or presumably the drawings) was an apathetic shark on the left of the screen a conceptual part of the show.  It was, in a sense, just bad dancing.  Based on all this, Sprigman argues “As I explained in my previous letter, the Left Shark costume is an uncopyrightable useful article, and my client is free to copy it.”

I find the Sosa/Sprigman argument persuasive, but I also wonder if there is another layer entirely.  Namely, the NFL itself.  Perry presumably had an agreement with the NFL for her performance, and I have no doubt it would have carved out substantial IP rights for herself.  But the fixing in a tangible medium was the Super Bowl broadcast itself.  If Left Shark exists as a concept, does the NFL own it?  Or does no one.  It is a shrewd point that “Left Shark” was not something anyone set out to create.  But then it happened, and accidental meaning can be copyrightable.  

Lastly, of course, is the dangling possibility of fair use.  Assume that the sharks were intended to crate a boisterous atmosphere as Perry sang “California Gurls,”there’s a pretty good argument that adopting that image—even if fully copyrighted—transformed that substantially.  If Richard Prince can add guitars and pornography to serene images by Patrick Cariou of Rastafarians, then why not the nonsensical Rorschach Test that Left Share has inspired?

Here’s an even more down-the-rabbit hole possibility: Does Left Shark own “Left Shark”?  Independently copyrightable performances are very much in play in the Ninth Circuit right now as we await a decision in Garcia v. Google et al.  Again, there are likely work for hire contracts, but sometimes that falls through.  Lest we scoff at the idea (which, to be clear, would be a logistical nightmare, but the case is still undecided and the people wearing the robes make the decision, not us), Glendale, Arizona is located within the jurisdiction of—you guessed it—the Ninth Circuit.

Left Shark may be dancing with a little more pep if things fall that way.