How Useful is a Left Shark Costume?

In the comments section of my post about the Left Shark cease-and-desist letter on Friday, I ended up having a really great exchange with Brazillian lawyer Bruna Castanheira. Bruna asked about a point raised by both NYU law professor Christopher Sprigman and Public Knowledge VP Michael Weinberg (who is as much an authority on 3D law as anybody) on Make – whether a shark costume could attract copyright protection, since costumes have been viewed by both courts and the copyright office as ‘useful’ objects.

In order for a useful object to enjoy copyright protection, there must be either physical or conceptual separability between the design and useful elements of the object. Both Sprigman and Weinberg suggested that Left Shark might not be copyrightable as a result of that rule.

There is some reason to believe that is the case. I blogged last year about a case in which a hookah was found not to be copyrightable because of its useful function as a water container, despite the fact that its design was recognized by the court to be aesthetically like a sculpture.

But, I’m not sure that Left Shark is as open and shut as that. I don’t deny that costumes may be presumptively considered ‘useful’ (much like clothing generally). But the question could be whether Left Shark is more like that Hookah, or more like the bear slippers in Animal Fair, Inc. v. Amfesco Industries, Inc., where copyright was found for a slipper shaped like a bear paw (with claws and fur), despite the usefulness of the object as a slipper. In that case, on a motion for a preliminary injunction (aff’d on appeal), the district court wrote:

The impractical width and shape of the BEARFOOT™ sole, the artwork on the sole, the particular combination of colors, the profile of the slipper, the stuffed aspect of the slipper, and the toes are all sculptural features which comprise the artistic design and which are wholly unrelated to function. The Court therefore finds that the entire exterior design of plaintiff’s slipper is protectable under the Copyright Act.

Similarly, in National Theme Productions v. Jerry B. Beck, Inc., the district court found copyright in a set of fanciful costumes, including a tigress, magic dragon, rabbit-in-hat and pampered pup. Here, the court’s reasoning was consistent with Animal Fair:

 The costumes’ artistic features simply do not advance their utilitarian purpose as clothing or accessories. See Brandir, 834 F.2d at 1145 (artistic features incorporated on torsos in Carol Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir.1985) designed to further utilitarian goal). Given the minimal functional considerations which went into the design of the costumes, the court holds they should be afforded protection as applied art under the copyright law.

I should mention, the Court also states that “the Rabbit In Hat costume does not readily permit the wearer to sit, recline, or maneuver easily.” This aspect might be a toss up, because unlike left shark, right shark seemed to maneuver fairly well.*

So, as I wrote in the comments section yesterday, can anyone provide some cases that distinguish these ones or cut the other way? I definitely think there’s a debate to be had here. Otherwise, I think maybe Katy Perry(‘s aggressive lawyers) had a point…

* I really struggle with law jokes.

EDIT: An earlier version of this post included the wrong link/source for Michael Weinberg’s article.

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