Part 2 of a 3-Part Series on Celebrity Trademarks:
Receiving a dreaded “cease and desist” letter from a large firm can cause anyone to shiver in fear at the prospect of costly litigation. This is especially true for small and family or individually owned businesses. These small operations may not have the money to hire attorneys to defend against claims of copyright or trademark infringement. Unfortunately, there is a court recognized need to police and protect a company or celebrity’s brand and mark. However, in recent years, the broad trademark claims being made has been unprecedented, especially on behalf of celebrities and the uber-famous. Such incidents include threats to Etsy sellers, and the ridiculously infamous “Left Shark” claim.
Etsy and the Left Shark
Many of us utilize the popular craft-oriented website Etsy – something of a cross between eBay and Pinterest – to either purchase or sell fun, unique, and often hand-made items. Everything from furniture to jewelry to vintage cigar boxes is available for purchase. Some vendors utilize this website to sell merchandise that is associated with popular and trending celebrities, such as coffee mugs with “Feyoncé” written on the side.
However, when Beyoncé got word of some of these items, she felt the humorous pun was more than a mere coincidence, and immediately had her attorneys fire off a letter screaming foul play. The letter was sure to make various threats regarding the merchandise, and once Etsy got the message the seller’s items were removed. (Don’t worry, there are other Beyoncé-oriented items still for sale on Etsy).
Beyoncé is not the only one who has cried foul. Both Taylor Swift and Katy Perry have had their legal teams send off threatening cease and desist letters.
Taylor Swift is notorious for policing her trademarks, and has been at the center of a few intellectual property disputes. Recently, she, like Beyoncé, went after Etsy vendors, sicking her legal team on the sellers for the use of Swift’s likeness and lyrics on t-shirts and candles. The well-intentioned Etsy sellers were both scared and shocked when they received the cease and desist letters which demanded the immediate removal of the items.*
For Katy Perry, the 2015 Super Bowl halftime show was the start of a ridiculous and outlandish intellectual property dispute. If you were like me, you got more of a kick watching the “left shark” completely destroy the half-time show than you did watching Katy Perry’s performance (not to say that it wasn’t a great show, but the “left shark” was absolutely hilarious). No one could have anticipated how quickly the “left shark” would take off as an internet sensation though. Within a short period of time, the internet had created several memes of the “left shark,” and social media pages had numerous posts about the shark.
In the wake of this, Fernando Sosa, a political sculptor, rendered the “left shark” as a 3D computer file that could be downloaded, and posted a “Left Shark” figurine for sale online. Almost immediately, Sosa received the dreaded cease and desist letter from Katy Perry’s lawyers, claiming that Katy Perry had copyright claims to the “left shark” and making an absurd list of demands. The letter went viral, and Sosa hired Christopher Sprigman, an NYU law professor, to represent him in the matter.
Sprigman was quick to bite back on behalf of Sosa, responding with a humorous letter that seemed to almost educate Perry’s attorneys on copyright law by explaining that “federal courts and the United States Copyright Office have made clear that costumes [like the ‘left shark’] are generally not copyrightable,” and that Katy Perry really did not create or control the “left shark” or the “left shark” meme – the NFL possibly created the “left shark” costume and the internet was the creator of the humorous meme. Sprigman also made a simple request: “Just drop this thing.” Perry’s lawyers, in turn, filed trademark claims for “left shark,” “right shark,” “drunk shark,” and “basking shark.”
Book Law v. Street Law
I titled this blog “Celebrity Trademark Owners: The Bullies of the Intellectual Property World.” The reason for this description is because celebrities do just as described above – they utilize their money and over-priced attorneys (I probably shouldn’t say that as an attorney… but…) to push the average person around. This is because the law written in the books is different from the law practiced on the streets, in that an attorney writing to an individual on behalf of a celebrity could set forth unrealistic or ‘baloney’ claims that can scare the average person into stopping whatever it is they are doing.
In a very real sense, having an attorney and claims to such rights as trademark protection can give a celebrity rights in the real world that they do not, in fact, have in the legal world. While Sosa was fortunate enough to be able to hire Sprigman as his attorney and access this legal world, many are not so fortunate. This ends up giving these celebrities the control they so desperately want, when in reality, they don’t have these rights or control – at least not in the manner that they are seeking to enforce it.
However, some celebrities have taken their desire for these rights and control over their image too far, becoming the spitting image of a bully on the playground gathering all the toys, not to play with, but to ensure that no one else can play with them. These celebrities are forgetting that the public’s opinion can quickly and dramatically shift. The internet can be an unwieldy place at times (e.g., the “Streisand effect” such as Beyoncé’s failed attempt to remove the unflattering images of her halftime performance from the internet). Celebrities should tread lightly and be careful who they step on or threaten. The internet really just doesn’t like a bully, and when people on the internet band together, their wrath can be vicious.**
*Trademark infringement occurs when someone other than the owner of a trademark uses the mark in connection with the sale of goods in such a manner that it is likely to cause consumer confusion as to the source of those goods. As such, there was, and is, arguably no trademark infringement occurring on websites such as Etsy because it is unlikely that a consumer would ever actually be confused as to the source of these products. If a person saw a candle or mug for sale on Etsy with “Feyoncé” or “this sick beat” hand-painted on it, would the person really believe that it was Beyoncé or Taylor swift who created and is selling that mug? Probably not – especially if the mug was listed as a hand-made item.
**For example, consider the recently publicized event in which a car dealership belittled and stiffed a pizza deliveryman, then bragged about it on the internet, leading to public backlash.