UPDATE: The battle over Left Shark is not over yet! Upon closer examination, last week’s trademark-related denial involved only one of six classes (Class 41 for “live musical and dance performances”) covered in Katy Perry’s application to register a front view of the Left Shark. The Patent and Trademark Office rejected the specimen she submitted to prove use of the image as a service mark. The specimen in question was a photograph taken from the Super Bowl performance. Despite this initial rejection all of Perry's applications are still very much in play.
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.
Topics: Left Shark, trade dress, USPTO, Halftime Show, Katy Perry, Super Bowl XLIX, Trademark, New England Patriots, Sullivan & Worcester LLP, Super Bowl, Copyright, Patent and Trademark Office, Trending Trademarks
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.
Topics: Left Shark, Seattle Seahawks, Glendale, California Gurls Richard Prince, Hooray for Everything, Halftime Show, Malcom Butler, Katy Perry, Arizona, Jay Darby, New England Patriots, NYU Law School, Super Bowl, Rorschach Test, Copyright, Garcia v. Google et al., Ninth Circuit, Tumblr, Chris Sprigman, Tom Brady, Fair Use, Rastafarians Patrick Cariou, Art Law Report