For holy Moses, Left Shark, legal spats in 3-D

leftshark2AugustanaWhat in the world but legal claims could unite a left shark and Moses? How about 3-D printing controversies for both? As technology advances relentlessly — perhaps at the pace once described by Albert Einstein where “it has become appallingly obvious that our technology has exceeded our humanity”–counsel are intervening left and right to assert protections on creative items, whether these exist in copyright law or maybe not. That these cases keep cropping up at all, however, testifies to the growing ubiquity of 3-D copying and to its importance as a wary, new intellectual property front for Entertainment Law practitioners and their creative clients .

Sculpting a claim

Let’s look first to see whether a replica statue of a biblical titan can be sheltered from copying. A few weeks ago, Michael Weinberg blogged about a local photographer and his enthusiastic efforts to hone his 3-D scanning skills on a well-done copy of Michelangelo’s “Moses,” owned by Augustana College. The Sioux Falls, S.D., school had a fit, asserting violations of copyright law and claiming that the scans could lead to 3-D printing of its reproduced work. The photographer pulled his scans down from the Internet after legal threats from Augustana.

The school stuck, steadfast, to its vague position that its permission was required for the 3-D scan, which Weinberg — invited in to the online controversy by an onlooking artist who specializes in making 3-D replicas of old, fine sculptures — retorted has zero legal credibility.

He asks how infringement can occur when no actual replica has been created on a 3-D printer. Further, the college’s piece is a cast not an original so it isn’t as if that aspect of copyright comes into play. And by the way, he asks: did any one notice that the original is  four-and-a-half centuries old and has been in public domain for a looong time?

Flap over flippers

More recently, copyright claims of 3-D printing made bigger headlines when the object of interest became the meme of the moment: Left Shark. His dance moves during the Super Bowl halftime show made him an instant star on the Internet, and Fernando Sosa, in the American way, sought a way to make some money off his 15 minutes of fame.

He began selling 3-D copies of Left Shark on Shapeways–that is until Kay Perry’s lawyers sent a cease and desist letter to the website; the site yielded to the legal fin twist. Signe Brewster wrote a great post, detailing the incident and has a copy of the letter.

But after the waters had been churned and chummed, Sosa sought legal assistance from NYU School of Law professor Chris Sprigman. And Sosa is back to selling his left sharks.

While Sprigman raises excellent arguments (thanks to Nina Ulloa from Digital Music News for posting his reply to the cease-and-desist letter) as to why Katy Perry lacks an infringment claim — chiefly, he says, because costumes are “useful articles” and cannot be protected –her lawyers aren’t backing down. The responses — as reported by Mike Masnik of techdirt — and this fish story are replete with irony and entertainment value in themselves.