Jumping the Left Shark and the Enclosure of the Social Creative Economy: An Interview with Fernando Sosa, the artist being sued by Katy Perry Corp.

Michael B. MacDonald

I did not watch the Super Bowl but it only took me a few hours to learn about, and then see, the Left Shark that everyone was talking about. I wasn’t immediately sure what the fuss was about. Left Shark was a thing and it wasn’t because Katy Perry decided it was (there was also a Right Shark that no one cares about), ‘we’ created Left Shark. This is how the social production of knowledge and value works, an accumulation of individual decisions that has the impact of creating a valued idea/thing. Left Shark is an idea that has quickly become a commodity. I’m sure many people did not even know what they wanted when they searched ‘Left Shark’. Perhaps it’s a small Left Shark figurine, a downloadable file for your 3D printer, a plan for a costume? Either way, Katy Perry Corp. has identified an opportunity to make money on this idea, if only they can get ownership of it. But other artists like Fernando Sosa had already created products, making Left Shark a thing by providing a commodity for people to invest their developing value into. Katy Perry did not make Left Shark, we did, along with creatives like Mr. Sosa. Perry Corp. has no moral rights to our community creative work, but her lawyers are arguing otherwise. This is not an argument about a 3d printer file of a blue dancing shark, it is about the power of semiocapitalists to privatize imagination by enclosing socially produced value.
The Enclosure of Imagination in Capitalism 3.0

Peter Barnes argued that capitalism as a production of surplus capital is being replaced by another form of capitalism that takes place by privatizing what Lawrence Lessig called “The Commons” what Michael Hardt and Antonio Negri called “The Common Wealth” that requires a pushback or politics that Peter Linebaugh called forth in the “Magna Carta manifesto.” This is a reorientation of capital production as an enclosure of the commons – the shared stuff of our networked world. Dani Rodrik calls this Capitalism 3.0 :

Capitalism 1.0: The market is the most creative form of relations that there is – it helps bring millions out of poverty – and needs to be protected by the state;

Capitalism 2.0: Markets cannot stand-alone, are not created out of thin air, and cannot regulate themselves. 2.0 is the development of the welfare state and the realization of the nationalization of markets. Capitalism works within nation states for the benefit of nation states. It is a national system and not a global one – Global relations existed but were “shallow”;

Capitalism 2.1: Since the 1990s financial markets expanded with an interest to “deepen” economic integration globally. This is mixed with “neoliberal errors”: A) Deepening integration without dealing with national regulations; B) Free market economics can show you which policies are good and which need to be eliminated. State intervention on the market is seen to be uniformly bad. The need to see all human relations through a simplified lens of homo economicus – economic man – putting social life under the rule of financial economics and ignoring all social production that does not produce direct and quantifiable financial value for private ownership;

Capitalism 3.0: Different models of capitalism working together peacefully with capitalism not as a thing but as a mode of human relations. All of these contemporary discussions of a new model of capitalism ask for a focus on the social aspects of production. This is a contemporary discussion in economics but of course there is a lineage of critical theorists in the Marxist tradition who have long engaged with the idea of biopolitics: which is the acknowledgement that economic, social, cultural, and political dimensions are not separate spheres and that lifeways are produced and reproduced in a space where these dimensions overlap. Here the social production of value is central and it seems this is where the battle for Left Shark is taking place, whether or not an older version of capitalism is going to be allowed to keep a newer more social marketplace under its control.
Social Workers in the new economy

The rhetorical success of Richard Florida’s Rise of the Creative Class not withstanding, there is a need for critical discussion in this area. It’s not just the creative class that are changing but it is the entire field of cultural production, a field that needs to be charted and one that should emphasize the inclusion of creative artists and successful communities and that provides protections against the predatory actions of lawyers working on behalf of creative monopolies attempting to privatize socially produced ideas. This needs to be a central conversation if we are to build social economies that will ensure creativity and community in the marketplace.

I hope this is the moment when capitalism jumps the left shark, the moment when we look back at this episode and realize that capitalism has gone too far in trying to privatize independent ideas using bullying tactics. The case of the Left Shark is not simply an issue of who owns the idea of the shark, because we know no single person does, so the question is how will this will play out. Will it become an issue of economic equality and the right to an idea, or will it become another example of corporations using lawyers as economic marauders to bully ownership from the commons. Let us be clear, this is the contemporary enclosure.
Interview with artist Fernando Sosa:

Q. In a report published by the Independent you are quoted as saying: “Apparently sharks, palm trees and beach balls are all now copyrighted…anyways I’m making this available to everyone. Now you can 3D Print your very own left shark. Just make sure you download this file ASAP just in case it’s taken down.”

Can you explain what happened between the half-time show and this posting?

A. So this lawyer sent this Nastygram to Shapeways.com the company hosting, selling, and 3d printing my multiple Color 3dprinted shark on their site at my subdomain Shapeways.com/shops/amznfx. They contacted Shapeways instead of sending it to me directly, despite me having a huge banner that readpoliticalsculptor.com on the page. Shapeways informed me and sent me a copy of the now famouscease and desist that fails to swear under penalty of perjury that Katy Perry owns copyright. Hence the reason why lawyers refer to it as a “Nastygram.”

I called this law firm to see what they didn’t like about this piece- to hear more about this claim and hopefully work something out. Plenio [ Steve Plinio, Esq.], or whatever his name is, called me back and this is when I asked him those questions. He said that Katy Perry owns everything depicted in the half time show and I was violating her copyright. This is when I sarcastically asked him if the Palm trees, beach balls and sharks are all copyrighted. That’s when he asserted they were. Also said no licensing was available for the sharks.

Please remember that the cease and desist was addressed to Shapeways and since I was not contacted directly I felt I had no obligation at the moment, so I moved to share my shark file inthingiverse.com before I was sent a cease and desist by this law firm. I was not willing to let this project and my artwork be killed by these lawyers (Also this was all before I had secured legal representation).

So this quote quickly addresses my state of mind at that time.
Q. What did you do and how did it feel when you received the cease and desist order from Katy Perry’s lawyers?

I honestly was angered and I was furious. This lawfirm had just cost me dozens of hours of 3d modeling, 3d printing and promotion I had worked on for about 24 hours

I had tweeted, blogged, instagramed, and contacted all my press contacts to get this to sell. Just when it had started to gain steam and websites started to write about it and linking to my page, my product was deleted!! Theawesomer.com, technabob, 3print.com and numerous sites are still linking to a dead link!

I lost 14 actual sales that Shapeways already refunded before the lawyers came after me. However, I estimate I lost hundreds of potential sales the week my product was off the market since this was an impulse buy item. It is still not back at Shapeways as we speak now.
Q. Working with a lawyer is expensive and you’re now giving these files away for free, so why did you decide to get a lawyer? And how did that occur?

I released the file when I thought I had no recourse and I thought I was out of luck. I believed Katy Perry’s lawyer at his word when he told me they owned copyright so releasing my file was my way of not letting my work go to waste. It will take months for these lawyers to sell licenses, manufacture thousands in China, and put them on sale here in the US. So I let the people have access to them now if they know someone with a 3d printer.

This move is probably costing me money but that was the only move I had back then. A lawyer was not an option for me. I’m a one-person company and I don’t have 400-750 per hour to spend on a lawyer to fight a losing battle with a corporate deep pocket law firm.

However, after CNN went live with the story, actual lawyers started to chime in and let me know that you can’t actually copyright shark outfits. Also that the lawyers failed to swear under penalty of perjury that they own copyright. So this battle I once perceived as a losing battle wasn’t a waste of money anymore.

So I started online legal fund at http://www.gofundme.com/lp5xec I also put aside some savings and I secured the representation of Christopher Sprigman, who is currently helping me fight against this deep pocket law firm.
Q. What do you think is at stake in this lawsuit for Perry Corp? It seems to be a matter of owning the monopoly over an income generating product, is it the same for you?

Honestly, I don’t think Katy Perry would care much about a small shop capitalizing on this Internet created meme. I honestly think the people behind this are her greedy lawyers who make money sending these bogus cease and desists, make money suing these small businesses, make money selling these licenses, make money no matter what.

I like to think Katy Perry already made her millions and wouldn’t care if someone like me makes 140 bucks. But I guess we will find out if it’s her or her lawyers behind this crap when someone actually confronts her.

But I do agree these lawyers are killing competition using these bogus copyright claims and soon they will be able to use trademark cease and desist when their applications are approved. So eventually they will have a monopoly on this Internet created meme. This is despicable because America is great because of entrepreneurs like me who use new technology to fulfill a niche market that otherwise would go unfulfilled. These lawyers and their copyright/trademark trolling are sending America and the world back decades. They are what’s wrong with America and the world right now.
Q. Do you have any advice for independent artists and designers?

When I first receive the cease and desist from Katy Perry’s lawyers I believed them at their word when they said they owned the copyright of this shark outfit. So my advice would be: Don’t trust lawyers and specially those who are looking to profit from your failure to fight back.

If doesn’t seem right Google it, and if it still doesn’t sound right, blast it off to social media. Lawyers might have deeper pockets but you might have a whole community willing to go to war along with you when these lawyers try to use bogus claims to shut you down.

It’s time that small business stand up and fight along side each other against these corporate law firms looking to profit from something that we created, not them.
Please click here to support artist Fernando Sosa #3dLeftShark Legal Defense Fund.

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