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February 20th, 2015
Does Katy Perry’s ‘Left Shark’ Copyright Claim Have Teeth?
Law360 published Amelia Brankov’s article, "Does Katy Perry’s 'Left Shark' Copyright Claim Have Teeth?", on the copyrightability of the "Left Shark" costume from Katy Perry's Super Bowl half-time performance.
Recently, Katy Perry sent a cease-and-desist letter to an artist selling 3-D printable plans for a figurine of the "Left Shark" backup dancer featured in the recording artist’s Superbowl half-time performance. Perry claimed that the figurine infringed her copyright interest in the costume worn by the "Left Shark," who has achieved Internet fame due to its comparatively inferior dance skills than those of its counterpart, the "Right Shark." In response, the sculptor’s attorney claimed that Perry’s claim is meritless because the shark costume is a useful article that is not copyrightable. So is the shark costume protected under copyright law? Here’s a summary of the relevant copyright law.
Copyrightability of Costumes
Under the Copyright Act, "pictorial, graphic, and sculptural works" are eligible for copyright protection. 17 U.S.C. § 102. By contrast, "useful articles," defined as articles "having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information," are excluded from copyright eligibility. 17 U.S.C. § 101. This limitation stems from the notion that functional items should not be afforded with the relatively long-term protections of copyright, as opposed to the more temporary rights provided under the Patent Act. Courts have consistently held that articles of clothing generally are useful articles not protected by the Copyright Act. See, e.g., Fashion Originators Guild of America Inc. v. Federal Trade Commission, 114 F.2d 80, 84 (2d Cir. 1940), aff’d 312 U.S. 457 (1941).
However, copyright law can afford protection to design elements of clothing where those elements are "separable," either physically or conceptually, from the garment.
Physical separability exists if one or more of the decorative elements can actually be removed from the original and separately sold, without adversely impacting the item’s functionality. See Jovani Fashion Ltd. v. Fiesta Fashions, 500 Fed. Appx. 42, 44 (2d Cir. 2012).
Conceptual separability exists when a designer exercises artistic judgment "'independently of functional influences,' rather than as 'a merger of aesthetic and functional considerations.'" Id. (quoting Brandir Int’l Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1145 (2d Cir. 1987)). For example, a decorative belt buckle sold in a jewelry store which can also be pinned to parts of the body other than waist can be viewed as a sculptural work with independent aesthetic value that is conceptually separable from the belt’s useful function. See, e.g., Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir. 1980).
In 2005, the Second Circuit Court of Appeals considered whether Halloween costumes, in their entirety or in their individual design elements, were eligible for copyright protection. See Chosun Int’l v. Chrisha Creations Ltd., 413 F.3d 324 (2d Cir. 2005). In that case, a designer of plush Halloween costumes of lions, ladybugs and orangutans alleged that a competitor committed copyright infringement by selling slavish copies of the designer’s costumes. The district court dismissed the plaintiff’s lawsuit, holding that costumes are not copyrightable as a matter of law. The appellate court reversed, finding that the district court erred in failing to conduct a separability analysis before dismissing the claim, and remanded the case for further proceedings.
In its opinion, the appellate court held that the sculpted heads of the animal costumes could be physically separable if they could be removed from the costume without affecting the trick or treater’s ability to cover his or her body. Id. at 329. Additionally, an element of a Halloween costume could be conceptually separable if it "invoke[d] in the viewer a concept separate from that of the costume’s ‘clothing’ function,’ and if its "addition to the costume was not motivated by a desire to enhance the costume’s functionality qua clothing." Id. at 330; see also United States Copyright Office Policy Decision: Registrability of Costume Designs, 56 Fed. Reg. 56530, 56532 (1991) ("fanciful costumes will be registered if they contain separable pictorial or sculptural authorship"). The case later settled, before the trial court decided the issue of separability.
A week later, the Fifth Circuit Court of Appeals denied copyright protection for "very creative" casino uniforms including "elaborate masquerade-type costumes." Galiano v. Harrah’s Operating Co., 416 F.3d 411, 422 (5th Cir. 2005). The court determined that the separability analysis "tends to reflect a direct relationship between a costume’s copyrightability and its actual or potential market value as a stand-alone piece of artwork." Id. at 420. The court held that the evidence did not show that the plaintiff’s costume designs were marketable independently of their useful function as casino uniforms, and therefore dismissed the plaintiff’s copyright infringement claim. Id. at 422.
More recently, in 2014, the U.S. Copyright Office gave further guidance concerning the registrabilty of costumes. The following example from the Compendium of U.S. Copyright Office Practices shows how the Copyright Office handles applications for costumes:
Cornelius Change files an application to register a "witch costume" that consists of a white dress, pointed hat, high heeled shoes, broom, angel wings, and a skull-and-crossbones necklace. Because the wings and necklace are physically separable from the useful aspects of the costume, the registration specialist will examine these elements for copyrightable authorship and will ask the applicant to delete the other items from the claim.
Compendium of U.S. Copyright Office Practices, 3d Ed. (2014) 900:42.
Application to "The Left Shark"
Were a court to consider Perry’s claim, it likely would view the "Left Shark" costume as a useful article, and analyze whether the costume contains original elements of authorship that are separable from the costume’s utilitarian function. Perry’s claim letter itself does not explain how she believes the "Left Shark" satisfies the separability requirement. As to the costume, it is a full-body, blue and white costume shaped like a shark with fins, eyes, gills and teeth. Given that the costume appears to contain only design elements that are necessary to portray a shark, it is unclear whether Perry could show that the costume contains physically separable elements of authorship.
In considering whether her costume passes the conceptual separabilty test, a court would analyze whether there is sculptural authorship that is independently recognizable and capable of existence apart from the overall utilitarian shape of the costume. However, unless and until a lawsuit is filed, no court will have the opportunity to decide whether the claim over the "Left Shark" has teeth.
 It should be noted that, while the scope of this article is limited to the issue of whether the "Left Shark" costume is copyrightable, in subsequent correspondence to the accused infringer, Perry claims that the shark costume is based on multiple sketches, which are copyrightable. In response, the artist states that the issue of whether the sketches are copyrightable is irrelevant because he did not copy the sketches (which he never saw), but rather copied the costumes.