Artist Selling Left Shark Figures Gives Katy Perry a Copyright Lesson…

Katy Perry’s lawyer sent Fernando Sosa a cease and desist for selling a Left Shark 3D printing file on Shapeways. Sosa lawyered up, and sent this letter in return…

He’s selling the figure on Etsy now too.
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51 Responses

  1. Sam

    Can’t we just handle this shit with fists in the driveway like civilized human beings?

    Reply
    • SickBeatMaker

      Katy dipping her wrapped fists into epoxy and then into a bucket of glass shards would be really something.

      Reply
  2. Dry Roasted

    He should sell special-edition Left Shark with ‘Party Like It’s 1989’ emblazoned on it.

    Reply
  3. Anonymous

    Nina, I can assure you Mr. Sosa is on the receiving end of any Copyright lessons in this case. 🙂

    Reply
    • Sarah

      Not really. If nothing else, the claim of ownership is a legitimate issue – in fact, it’s standard practice to assert the basis of your ownership claim in the initial C&D letter.

      If the C&D letter doesn’t do that, it’s reasonable to respond with an answer that basically says “before I change my business activity to my detriment, please explain why you have the legal right to demand that I do so.”

      Reply
      • Anonymous

        “it’s standard practice to assert the basis of your ownership claim in the initial C&D letter”

        Um yes, that’s what Ms. Perry’s lawyer did: “We represent Katy Perry, the owner of the intellectual property depicted“.

        And the non-copyrightable costumes Mr. Sosa’s lawyer mentions have nothing to do with Perry’s famous wearable sculptures.

        I think you made an important career defining decision when you chose to support the parasite instead of the artist here.

        Don’t expect artists to trust or support your upcoming YouTube/Spotify/iTunes alternative after this.

        Reply
        • Sarah

          You may read too much into things.

          I wasn’t “supporting” anything, I was acknowledging a legitimate issue.

          “We represent KP, the owner of the intellectual property depicted.”
          That’s a bald assertion, and it doesn’t hold any weight in a court of law (and therefore it doesn’t hold much weight with another attorney, as a rule). Anyone can make that claim of ownership. You have to back it up – on what basis do you claim the copyright? Is it because you created it yourself? Is it because you purchased it from the original creator? Those are facts that back up the bald assertion of “I own this IP.”

          This is pretty standard in legal practice. Merely claiming “I have this right” or “you can’t do that” isn’t sufficient for any court – otherwise even you could send a letter to Katy Perry asserting your ownership in the IP and demanding she modify her actions accordingly. The rational response to any bald assertion like that is “give me facts that back up what you’re claiming.” That’s why it is standard practice to include the supporting facts along with the assertion of a legal right in any initial letter.

          As you can see, this comment doesn’t “support” anyone – I’ve made no claim that he has the right to use this design, or that she doesn’t have the right to demand that he stop using this design. If you think I expressed any opinion as to which side is “right,” you are objectively wrong. I made a comment regarding an apparent issue in the C&D letter itself: if the letter failed to assert facts supporting the claim of ownership, then it is reasonable to request that those facts be provided before action is taken either way.

          Not everything is as black and white as you want it to be. If you want to assume from a comment that you misinterpreted that I support “parasites” over “artists,” I won’t even try to stop you. 🙂

          p.s. If your attorney ever sends out a C&D letter based on copyright without including any facts demonstrating your ownership of the copyright, you should get a new attorney – because failing to include actual facts that establish ownership makes it reasonable for the recipient to respond as this one did. At the very least, you shouldn’t be billed for the inevitable follow up letter that will be required.

          Reply
          • Anonymous

            “I wasn’t “supporting” anything”

            Sure you were. Feel free to support Nina’s anti-copyright crusade, but you can’t have it both ways.

            “I was acknowledging a legitimate issue.”

            Not even close. Ms. Perry owns the rights, according to her team. If Mr. Sosa wants to dispute that, he can do so in court.

            “If your attorney ever sends out a C&D letter based on copyright without including any facts demonstrating your ownership of the copyright, you should get a new attorney

            No, this is a boilerplate C&D and it tells Mr. Sosa everything he needs to know.

          • Sarah

            Okay. There are a few things here.

            1. Copyright law – like all laws – are generally broad rules that are applied to specific facts, which are different in every case. Are you suggesting that I need to pick a side – always in favor of the alleged copyright owner, or always in favor of the alleged copyright infringer – for all cases regardless of the specific facts of the situation? Because that’s unreasonable. For instance, I can be in favor of copyright in general but support fair use in the case of a parody. Or I can be in favor of copyright generally but not agree that copyright applies to a specific work (for instance, a recipe with no accompanying text). Again, this isn’t black and white.

            2. You seem to think that it’s sufficient to say “I have a legal right, you must comply” without supporting evidence. It’s not. It may be easier to consider this in the context of a less sensitive subject. In this case, let’s go with property ownership.
            Bob believes he owns House A.
            Currently Sue lives in House A and believes she owns it.
            Bob hires an attorney who sends her a letter saying “We represent Bob, who holds legal title to House A. You must leave House A within 3 days.” The only “proof” Sue has that Bob owns House A is that Bob’s lawyer asserts that Bob owns House A. Does Sue have to take Bob’s lawyer’s word for it and immediately vacate House A with no questions asked? Is her only option to comply immediately and then go to court to sort it out? The answer to both questions is “No.”

            If you are asserting a legal claim, the burden of proof is on you – you must prove you have the right to assert the claim; simply stating “I have the right” is not proof, and no one is required to take you or your lawyer or your “team” at your word. In this case, Bob probably has to either (1) produce evidence that convinces Sue that he in fact owns House A such that she voluntarily accepts his claim and moves or (2) go to court and convince the court that Bob, not Sue, owns House A. The burden is on the person asserting the claim. Welcome to the US legal system.

            You seem to think the system works this way: I claim a right, you must comply, and then you can go to court to dispute it after complying.
            No, no, no…. the system does not work like that. It works like this: I claim a right, I attempt to convince you to voluntarily comply, if you don’t then I have to go to court to dispute it.

            Forget this specific case for a second – the system you advocate would be open to all sorts of abuse. I – not an artist – could send you a C&D letter asserting my right to your latest work and insisting you pull it from the market and disgorge all profits along with an accounting; you would have to comply immediately, and then hire an attorney to dispute it in court.
            “But that’s ridiculous – you don’t have any basis at all for claiming that so I wouldn’t have to comply!”
            Well, that’s kind of the point – you’re assuming knowledge, that the alleged infringer will always know that he’s actually running afoul of a legit copyright. Five minutes with any law school text on the subject will tell you that is quite often not the case. So how do we protect people from being terrorized by illegitimate claims? We say that the alleged copyright holder has to either prove to the alleged infringer that he’s infringing, or prove to a court. We put the burden on the copyright holder, not the alleged infringer – just like almost everywhere else in the legal system.

            You are free to think that a letter stating “I own the copyright” without any supporting facts for that claim is sufficient to legally compel the recipient and alleged infringer to comply. But you are objectively wrong – that’s not how the system works. Stating “I am right” does not, unfortunately, make you right.

            There is a separate ethical issue: what if the alleged infringer actually knows the claimant does hold the copyright and he is in fact deliberately infringing? Then it’s a shitty move to force the copyright holder to take the dispute to court (and I’ll agree with your “parasite” term in that case), but it only makes the infringer a jerk – it doesn’t make his choice to force litigation illegal.

            p.s. If you get a boilerplate C&D letter from Greenberg Traurig, you should seriously complain to the firm. They’re a bit pricey for boilerplate.

          • Anonymous

            “For instance, I can be in favor of copyright in general but support fair use in the case of a parody.”

            Let’s not build straw men here, OK? Nobody disputes fair use.

            But what you’re doing is Blaming The Victim Classic, and it just won’t do your business any good.

            “I – not an artist – could send you a C&D letter asserting my right to your latest work and insisting you pull it from the market and disgorge all profits along with an accounting; you would have to comply immediately, and then hire an attorney to dispute it in court.”

            Yes Sarah, and that’s exactly what happens all day long:

            “You don’t own that brand/name/domain!” “You didn’t write that song!” “You didn’t make that cover!”

            But here’s the good news: It’ll cost you — a lot — if you can’t prove it in court.

            The bad news is you’re screwed if you can’t afford an attorney.

          • Sarah

            It’s not really fair to selectively pull out statements. I wasn’t making a straw man argument. I was providing an example of how the issue is more complicated than you present it. “Nobody disputes fair use.” Sure that’s easy to say. But what constitutes fair use is pretty shady. I can see infringement where you see fair use- and courts are equally wishy washy on the subject. Because what constitutes fair use is so debatable, the statement “nobody disputes fair use” is rather meaningless.

            Here’s where I think we’re running into trouble:

            I wasn’t arguing – or even addressing – matters of right and wrong. I was commenting purely from a legal perspective; that’s what I’m trained to do. Ethics and the law are very different. But from a purely legal perspective, the letter GT sent to Sosa got exactly the response it should have gotten.

            As a final note, it’s actually important from a damages standpoint to explain the basis of your claim in the first letter. If you say “I own the copyright, you’re infringing, stop now,” you get this sort of response and then you have an awfully hard time proving willful infringement (which would entitle you to significantly greater damages, whereas innocent infringement can get you very little).

            If, on the other hand, your C&D letter says “I own the copyright in this because X, Y, Z and you are infringing because A, B, C, so stop now,” it’s easier to prove willful infringement (at least moving forward, because the defendant is now on notice) and therefore get the much more significant damages if it gets to court. 🙂

          • Anonymous

            “But what constitutes fair use is pretty shady”

            Could we try again in English, please? This is TorrentFreak speak, no comprendo.

            “the letter GT sent to Sosa got exactly the response it should have gotten”

            Indeed. Assuming Sosa is suicidal.

            Then again, he probably wouldn’t steal from Katy Perry in the first place if he were not.

          • Sarah

            Ah, no… that was actually colloquial court speak. Fair use is an incredibly complicated subject in courts. There’s literally not a black and white formula you can use to say “this is objectively fair use; this is objectively not fair use.”

            If stating a legal reality (handed down, by the way, by the Supreme Court) is “TorrentFreak speak” then I don’t know what to tell you. Should I lie and say “fair use is a clear determination; we can determine if something is fair use the same way we can determine the number of calories in a hamburger, there’s no room for reasoned debate on the subject because it’s a factual matter”? That’s just not true.

            If you reject factually accurate statements simply because you think that they support piracy and are “TorrentFreak speak” (by the way, they don’t support piracy to anyone with a brain), there’s really no point in discussions on this topic at all. Nonetheless, I’m not quite the “enemy” you seem to want to think I am. No need to debate that now, time will tell. 🙂

          • Anonymous

            “stating a legal reality (handed down, by the way, by the Supreme Court)”

            So the following line was handed down by the Supreme Court?

            What constitutes fair use is pretty shady

            Really? 🙂

            Link, please!

            Contrary to common belief among torrentfreak readers, copyright law is not complicated and fair use decisions are not written in Latin and handed down to us from Bildenbergers and Illuminati.

            More often than not, common sense will tell you if you can use a work or not. (Hint: If it feels like stealing, it usually is.)

            they [Sarah’s statements in this thread] don’t support piracy to anyone with a brain

            I didn’t mean to imply anything of the sort. TorrentFreak is not only pro-piracy, it’s also anti-copyright.

          • Sarah

            You are being unnecessarily aggressive and adversarial …. do you need hugs? 🙂

            You’re also trying to create disputes that don’t actually exist. Have a great night, Anonymous, it’s been a pleasure chatting with you.

          • Sarah

            BTW, the author of this response is Chris Sprigman, a NYU law professor who teaches classes like Advanced Copyright. We can confidently bet that he knows the subject pretty well (NYU law is a good law school – even better than the law school that Katy Perry’s attorney and I attended).

            I don’t specialize in copyright law, but I do know that “I hold the copyright and you have to stop” is not, by itself, an argument that holds any weight. Ms. Perry’s attorney knows this too. Contrary to your assertion, this letter does not tell Mr. Sosa “everything he needs to know.”

            In fact, it’s possible he used a boilerplate letter that could’ve come from the first page of google search results for “c&d template” (again, not something you expect from a firm like GT) precisely because he doesn’t have anything to back up the claim. IF that is the case, then this is a good example of an abuse of copyright law.

            My dear Anonymous, I can (and do) wholeheartedly support copyright in general without blindly assuming that every claim of copyright infringement is legitimate.

          • Anonymous

            “it’s possible he used a boilerplate letter that could’ve come from the first page of google search results”

            Easy on the conspiracy theories, Sarah.

            Here’s how it works in real life: You use boilerplate C&Ds for boilerplate infringements.

          • Sarah

            I’m not sure what you mean by “conspiracy theory” because I didn’t suggest anything of the sort. Using boilerplate docs (even those found on google) is actually extremely common practice. There’s nothing wrong with boilerplate, by the way. There are many instances in which it’d arguably be unethical to NOT use boilerplate (e.g., you’re unnecessarily duplicating work). 🙂

          • Anonymous

            “There’s nothing wrong with boilerplate, by the way”

            Guess you shouldn’t criticize Perry’s team for sending one, then…

          • Bert

            I disagree with your statement that NYU law school is better than our law school, Sarah.

  4. Anonymous

    next she and her team will send notices to every last human claiming that the way riff raff and all the other doodz she spreads em for splashes her face is her special IP and Copyrightable act… all pornstars will get a notice from her about the now owned deed, and her and riff raff or whatever sleezeball shes letting hump on her this week will own the face splashing biz and collect gargantuan royalties retroactive to day 1 for their epic awesomeness of amazingness…

    i would think any guy that tags katy now will have visions like office space and um ooooh yeeeeah bill lumberg, but it will be some oh faces of riff raff giving it hell, scary indeed…

    you can probably find kanyes last grammy up there somewhere along with half a marching band, or something…

    🙂

    Reply
  5. Anonymous

    1) Why this Don Quixote campaign against copyright and trademark all of a sudden?

    2) Why don’t you pick a fight you can win if you actually want to change IP law?

    Modern economy is based on IP so you’re never going to abolish copyright or trademark, but you might be able to affect the revision process if you were shooting for realistic changes, such as shorter copyright periods…

    Reply
  6. Lol

    This is good entertainment. Dont tell ur kids that katy perry isnt real until they are old and mature enough to handle it.

    Reply
  7. Sarah, you can stop responding...

    ..as anyone who has any semblance of the law underlying this conversation fully supports your contentions within– ‘Anonymous’ is clearly coming at this from a layman’s perspective, polishing his responses with condescending overtones in an effort to somehow justify his/her position, and breaking down and responding to out-of-context snippets of your statements in an apparent attempt to support the continuance of this joke of an argument. I can assure you that DMN readers with any level of reasonable intelligence would agree that you’re on the winning side of this forced dialogue. Let Anonymous do what he does best and try bullying you (or likely me at this point) into further completely forgettable discourse with plenty of humor, but absolutely no basis in the law.

    Reply
      • Rockstream

        Sarah, I admire your responses. It’s lucky for the rest of us that Anonymous did not follow the usual advice, “When you’re in a hole, stop digging.” Thank you for your expanations as well as the lessons on how to deal with a jerk. I usually just ignore them but you did far better.

        Reply
    • Anonymous

      “you’re [Sarah] on the winning side of this forced dialogue”

      Then I’m sure Mr. Sosa won’t stop selling his products… 🙂

      Reply
  8. David

    Speaking as just another armchair lawyer – and not even an American one – I don’t claim any authority on this issue, but we might at least look at what the US Copyright Office says in Section 2 of this:
    http://copyright.gov/docs/regstat072706.html

    I think the gist is that the design of a ‘useful’ article such as clothing does not in general enjoy copyright protection (but query whether a shark costume is ‘useful’ even under a broad definition?), but it can do so if the design features are ‘separable’ from its utilitarian aspect. Moreover, it could in principle be covered by a ‘design patent’, though getting one is difficult and expensive – not that that would be a problem for KP. I think that KP would at least have an arguable case for copyright protection based on the ‘separable’ features of the design. In a sense, Fernando Sosa has set himself up for such an argument, because by creating a ‘sculpture’ based on the design (i.e. not a wearable costume) he has already done the ‘separating’!

    Reply
    • jw

      It seems to me that the sculpture isn’t separation.

      If one created a sculpture of a jacket, the jacket itself is still a a useful item. The sculpture may enjoy copyright protection, but the jacket would not.

      Then again, I’m no lawyer.

      Reply
  9. Khal

    As a former producer/exec, someone who’s been infringed upon, and someone more than politely familiar with GT, I would contend that ‘anonymous’ is spot-on. Assertion without substantiation lends itself to the response elicited by Mr. Sosa’s counsel. As anonymous stated, this is the legal construct we find ourselves in.

    Reply
  10. David

    One lawyer claims to be acting for the copyright owner, Katy Perry. Another lawyer claims to be acting for Mr Sosa. How come some commenters here expect Perry’s lawyer to prove his status and not the other lawyer? Sauce, goose, gander.

    Reply
    • Gwiz

      How come some commenters here expect Perry’s lawyer to prove his status and not the other lawyer?

      Simple logic really. As with any civil court proceeding, the party bringing the suit must prove they have legal standing to sue before the case can move forward. If there is no copyright on Left Shark or if Perry doesn’t hold the copyright to left shark then there is no case to begin with.

      Reply
      • Anonymous

        “the party bringing the suit must prove they have legal standing to sue before the case can move forward”

        No no — that’s what courts are for!

        You can repeat Sarah’s nonsense all day long but that doesn’t make it right.

        Reply
        • Gwiz

          No no — that’s what courts are for!

          Right. It’s one of the first procedural steps in a civil case. Courts tend to look unfavorably on lawyers bringing cases before the court where their client obviously has no standing. It wastes the court’s time. Hashing out whether there is legal standing between the parties involved beforehand is perfectly reasonable. If a resolution isn’t achieved then the court needs to rule on that before proceeding any further since without legal standing there cannot be a case at all.

          Reply
    • Christopher Hugan

      For one thing, the Plaintiff always carries the burden of proof. That does not shift to the Defendant upon unsupported and conclusory allegations. Plaintiff will have to prove ownership of a valid copyright if a lawsuit is filed. Why not hash this out now?

      Pragmatically speaking, wouldn’t you want your lawyer to fully evaluate the facts before framing a response? Mr. Sosa’s lawyer would not be doing his job if he did not question the validity of the claims.

      Reply
      • Anonymous

        What you, Sarah and the rest of you don’t understand is that you don’t ‘prove ownership of a valid copyright’ in a C&D. 🙂

        Reply
        • Gwiz

          What you, Sarah and the rest of you don’t understand is that you don’t ‘prove ownership of a valid copyright’ in a C&D.

          True, it’s not required. Also true is the fact that if the person receiving the C&D doesn’t believe you have a valid copyright claim on the supposed infringed work then they are not required to give in to any of the demands in the C&D. Just like if someone sent Google a DMCA notice for Night of the Living Dead (1969), Google is not required to do anything since that movie is in the Public Domain and the sender doesn’t have a legal standing to demand anything.

          Reply
          • Anonymous

            “True, it’s not required”

            Good, now we’re getting somewhere.

            “if the person receiving the C&D doesn’t believe you have a valid copyright claim on the supposed infringed work then they are not required to give in to any of the demands in the C&D”

            But of course not — like I said elsewhere in this thread, people send the most absurd C&Ds and takedown notices 24/7.

            However, you will go to court and you will pay a lot of money in the end if the request is legitimate — as it is in this case — and you don’t give in to the demands.

          • Anonymous

            …also, before anybody begins to think that false DMCA notices and C&Ds might be a fast way to make a buck:

            Don’t even think about it.

            The receiver can (and should) sue you for a serious variety of reasons, including harassment and defamation.

          • Gwiz

            …the request is legitimate — as it is in this case

            That’s your opinion and it’s not held by Sosa or his lawyer which is why they haven’t complied with the C&D.

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