Hungry Like the Wolf

by Jay Marshall Wolman

In the wake of Super Bowl XLIV, Katy Pery’s backup dancer “Left Shark”, disputes among intellectual property lawyers arose as to what kind, if any, protection was available to the owners/designers of the costume.  Recently, our friend, the Boozy Barrister, over at Lawyers and Liquor, became embroiled with the world of furries, which got me thinking again about the copyrightability of costumes or fursuits, as the case may be.

Much of the precedent involving the copyrightability of fursuits came out of the Second Circuit.  See Chosun Int’l v. Chrisha Creations, Ltd., 413 F.3d 324 (2d Cir. 2005).  In Chosun, competing animal-themed Halloween costume makers fought over whether Chosun Int’l had a valid copyright to enforce.  The district court dismissed, finding the costumes to be non-copyrightable useful articles.  The Second Circuit reversed, remanding for a determination of whether there were elements that could be physically or conceptually separated from the costume itself.  By way of example, the Second Circuit suggested the head or hands could be removed physically or conceptually from the useful, clothing aspect of the costume.

Last month, the Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017) rejected the physical-conceptual distinction utilized in Chosun.  In Star Athletica, a copyright dispute arose regarding cheerleading uniforms.  Varsity Brands claimed its costumes were infringed upon and Star Athletica argued that the costumes were useful articles and could not be copyrightable.  Star Athletica won at the District Court, but suffered a reversal in the Sixth Circuit.  The Supreme Court affirmed the Sixth Circuit decision–the graphic designs were separately identifiable and could be protected.  It found that the designs could, essentially, be drawn as art and, therefore, were protected (the shape, cut, and dimensions of the uniform were not protectable).  The specific test announced was:

We hold that an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.

So, turning back to Left Shark and furries, either could be perceived as a separate work of art that is protectable.  Separability might be harder to determine, as the dimensions of the shark shape or a Boozy Barrister Badger fursuit are integral to the costume itself, but this is probably not fatal.  This is especially where fursonas (an actual term, though I prefer “fursonae”) may include the avatar, which can be a depiction of the fursuit in two dimensional form–a separate work of art.

Thus, a fursuit is likely eligible for copyright protection.  (The Left Shark trademark dispute is really not about the costume and the trademark is really unnecessary if it is copyrightable anyhow.)

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