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Intellectual Property

Social media adds an interesting layer to IP disputes

Social media’s ability to quickly make pictures and phrases popular is a fire that fuels the value of intellectual property, says Toronto trademark agent and IP lawyer John Simpson.

For example, shortly after pop singer Katy Perry’s Super Bowl halftime show, the unco-ordinated “left shark” in her performance had its own Twitter account and was the subject of numerous Internet memes. A small 3D printing company started selling replicas of the left shark, but was quickly hit with a copyright claim by Perry’s legal team.

"No one realized there was going to be so much value in this left shark thing until seconds after that silly performance, which is an interesting angle to it,” Simpson tells AdvocateDaily.com;It was an awkward response from Perry's legal team, which tripped over itself a bit because they may have realized there wasn't a sufficient chain of title to substantiate a copyright claim in the design of the costume. So they abandoned that approach and instead made a trademark claim.”

According to Gigaom.comlawyers have filed for trademarks on the phrases: “left shark,” “right shark,” “drunk shark” and “basking shark.”

"The issue in this case was someone wanted to start marketing this left shark, which a critical mass of people were made aware of thanks to social media,” says Simpson, principal of Shift Law. “The popularity is sudden and people want to capture the economic value in that. If you can get exclusive rights to left shark — even if interest in it only lasts a couple of months — you want to be able to leverage that.”

Simpson says it’s a similar scenario when it comes to idioms and catchphrases. For example, professional basketball player Jeremy Lin became synonymous with the phrase “Linsanity,” a phrase Lin likely didn’t create but is strongly associated with. Another sports example is Toronto Blue Jays’ pitcher Marcus Stroman, who recently trademarked the phrase “Height Doesn’t Measure Heart.”

“In the case of Linsanity, it was probably some clever writer or announcer at ESPN who coined the phrase,” says Simpson. “But if it's a phrase that's associated with a living individual, no other person can adopt it as a trademark so the rights would lie with Jeremy Lin, even if he didn't come up with it.”

Simpson says this ties into news that pop singer Taylor Swift recently took out trademarks on several of her song lyrics, including “Party like it’s 1989” and “This sick beat.” While Swift shares writing credit on these songs with a team, people strongly associate the lyrics with her.

"I think it's a recognition that if it’s easy to remember and millions of people recognize it quickly thanks in large part to social media — whether it's a song lyric, a catchphrase or a random event that happens during the Super Bowl — there's value in that,” he says.

“Wherever there's some sort of meme or phrase that a lot of people recognize, marketers will pounce on that,” Simpson says. “What usually ends up happening is that the whole story is over before the legal issues are really resolved, but swords are drawn very quickly, which makes it fun to follow.”

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