Canada: Left Sharks And Copy Cats: The Super Bowl's Impact On Protecting A Brand

Last Updated: February 8 2016
Article by Burtley Francis and Michael MacIsaac

You remember Left Shark...

The Super Bowl is a lot of things to a lot of people and is arguably the most anticipated event of the year that is not a holiday (officially). For some it is anticipation of experiencing the "must-see" commercials. For others it is the anticipation of the biggest football game of the season. However, for at least the 118 million people who watched Super Bowl XLIX, this Sunday everyone is holding onto hope to experience the next Left Shark.

You remember Left Shark. As Katy Perry stole the show with a medley of Teenage Dream and California Girls, Left Shark was lost in a world of his own, flailing his fins about in an unchoreographed mess that resembled... well, a fish out of water. At that point Katy Perry did not jump the shark*, but instead rode it to take the internet by storm.

The Fallout

The most surprising part of Left Shark's fishy performance was not the fact that it received about twice as much peak attention on social media than did the game's actual participants. Instead, it was the debate on copyright infringement and brand protection that followed.

Almost immediately afterwards, political sculptor Fernando Sosa started selling 3D-printed Left Shark figurines online. Almost immediately after that, Mr. Sosa received a cease and desist letter from Katy Perry's lawyers, in which they argued that Mr. Sosa did not have permission to use the copyrighted image of Left Shark. Ms. Perry's lawyers then attempted to trademark Left Shark, yet were denied on the basis that the proposed mark only identified a particular character falling short of the legal requirement for the mark to distinguish a particular good or service (i.e. Ms. Perry's musical services) from any others. Mr. Sosa's figurines are still available for purchase today.

Now that Left Shark is back in the news today, as we prepare for whatever Super Bowl 50 has in store, it is the perfect time to reconsider a very important question: what can you do to protect your brand here in Canada?

Copyright: Your Best Friend You've Never Met

In Canada, the concept of a copyright under our Copyright Act is relatively simple: you have the exclusive right to produce, reproduce, publish or perform any original literary, artistic, dramatic or musical work. For example, once you write a book, create a pamphlet, or take a photograph, you are automatically vested with the sole right to deal with that piece of work (although it is also possible to register it with the Canadian Intellectual Property Office as proof that you have created it). From there, you can keep that right to yourself, you can sell it to others, and you can stop others from using it if they do so without your permission. This protection lasts until 50 years following your death.

However, Left Shark is a prime example of how convoluted the concept of copyright can become. The first thing worth knowing is that ideas are not subject to copyright; it is the depiction of those ideas that is protected. Therefore, the fact that Katy Perry had an idea to use a shark in her dance routine does not mean that everyone else is now forbidden from dancing with sharks. What it does mean is that everyone else might be forbidden from using the likeness of Left Shark if it qualifies as a literary, artistic, dramatic or musical work. The same would be true if you created a pamphlet for your business: the idea behind the pamphlet cannot be protected by copyright, but the design and layout of it could be.

This became a point of contention among Left Shark legal commentators. The dance routine was copyrightable, and the songs Katy Perry was singing was copyrightable, but was the same true of Left Shark? Was the costume a piece of art?

This is a perfect segue into the second thing worth knowing about copyright. Whether something is protected by copyright can depend on two additional factors: a) the use for which that thing is created and b) how many times it is reproduced. Under the Copyright Act, this often comes down to whether something is a "useful article." The easiest example is clothing. Clothing is a useful article because it is more than just an artistic creation – it keeps us warm in the winter and protects our skin in the summer. Other examples could include kitchen utensils, furniture, or vehicles. Once something becomes useful, the Copyright Act says that it is not an infringement of copyright to reproduce it if that thing is produced by the copyright holder more than 50 times (unless your design is distinctive enough to be protected under certain exceptions in the Copyright Act, e.g. some t-shirt designs, or under the Industrial Design Act – be sure to investigate this possibility if you are in the business of designing and producing items for sale).

The rationale is that the production of items that provide a tangible benefit to Canadians should not be treated the same as purely artistic works. However, this creates an unusual system whereby the design of a useful article is subject to copyright so long as only 49 of them are made. Once you put the 50th useful article on the shelves, your copyright in its design runs the risk of being extinguished.

This is where the story of Left Shark provides a useful example. At the end of the day, Left Shark is a piece of clothing. Therefore, despite its less-than-practical design for business meetings or snow-shoeing, it could constitute a useful article and therefore could lose copyright protection once its owner made more than 50 of them.

If this seems strange, it's because it is. Paul Heald, Professor of Law in Illinois, summed up the useful article distinction as follows: "why should an otherwise protectable soft sculpture, like our large plush shark, be rendered unprotectable just because we hollow out the inside to fit a person and add some legs?" And that is the interesting point: once an item becomes more than a piece of art, it might be fair game. In a world of ever-growing technology where Left Sharks can be reproduced and sold with the simple click of a 3D printer, it is now more important than ever to have a plan in place before doing business with designs.

Trademarks: The Missing Piece

This discussion on copyright might leave you feeling a bit confused. You may be asking, "Why can't I use the Nike swoosh on my clothing if clothing can't really be subject to copyright?," or as Elizabeth McCaughey once asked back in 1994, "Why can't I use my last name to sell McCoffee?"

The answer is trademarks. Trademarks are the other important layer in putting together a plan to protect your business and your brand. Simply put, trademarks are a combination of letters, words, sounds or designs that distinguish your company from another one. Trademarks are unique to you, which is important because over time, a trademark can start to represent the value of what it is you produce and your reputation in the global community. The Nike swoosh and the golden arches are just two examples of unique images that have instant meaning in a way unique to those companies.

As with copyright, trademarks provide you with the exclusive right to use a design and the ability to stop others from using if they try. However, they are different from copyright in that protection is not automatic; trademarks must be registered with the Canadian Intellectual Property Office before those exclusive rights become yours. The term is also shorter – 15 years – although that term can be renewed.

Again, Left Shark is a prime example of both the process and the meaning behind trademarks. Shortly after Mr. Sosa started selling his figurines, Katy Perry applied for trademarks over the design of the Left Shark costume as well as the phrase "Left Shark." As part of that application, her lawyers submitted drawings of Left Shark and a very detailed description of his anatomy, right down to his number of gills and the shape of his eyes.

The U.S. Trademark Office refused to provide trademark protection to Left Shark on the basis that it "identifies only a particular character" and "it does not function as a service mark to identify and distinguish" Katy Perry's services from those of other musicians. Put another way, people do not necessarily look at Left Shark and associate it with Katy Perry. They look at Left Shark and think of... well, Left Shark.

Despite the fact that trademark registration was refused, this goes to show the importance in using trademarks to protect your brand. What started as a bit of unscripted entertainment turned into a legal battle over protecting the image of a musician. The same can apply to your business. While your business name or logo might need some time to build up value, registering them as trademarks is essential to protecting that value once it happens. Again, the process can be somewhat complex and technical, yet setting yourself up for success at the outset is much easier than trying to set up your dominos on the fly once they start falling into place.

Lessons from Left Shark

Entertainment value aside, Left Shark should be a reminder of both how important it us to protect your brand, and how quickly a failure to protect your brand can sneak up on you. Great ideas require great execution, and in an ever-connected world, the execution is more nuanced and more important than ever before. The legal framework is complex, and it is not always as simple as thinking of an idea and putting it on paper. Left Shark is but one example. Do your homework when it comes to turning your designs into a business, and always consider how copyright and trademarks might apply to your venture to make sure you are protected from the copycats (or copysharks) that are sure to be circling.

* The phrase "jump the shark" stems from the TV show Happy Days where in an episode near the end of the series' run the main character jumps over a shark on water-skis. The phrase is used to describe the singular moment in a show or series where it begins a decline in quality and has strayed irretrievably from its original formula.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Burtley Francis
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.