Episode Two: Attack of the Clause
Apr. 24th, 2008 11:13 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
major_clangerBeing in the Strand area this afternoon I popped into the High Court again to see how things were progressing in Lucasfilm v Ainsworth, aka the Stormtrooper Armour Copyright Case.
Slowly, it turned out. The case is now in its twelfth day and looks set to run into early next week. The claimants are summing up, which given the amount of evidence that must have been led in such a long trial is clearly going to take a while. When I entered court Michael Bloch QC, lead counsel for Lucasfilm, was addressing Mr Justice Mann on the question of the extent to which the High Court could enforce the judgment that Lucasfilm had obtained in the USA against Mr Ainsworth. This being a US judgment, Lucasfilm seemingly thought of an insanely optimistic estimate of how much business they might have lost, and the court had then multiplied it up as punishment for being naughty in the way US courts are wont to do. That isn't how it's done over here, and it turns out that there's even an Act of Parliament to limit the extent to which such (by our standards) ludicrously inflated awards of damages can be enforced in the UK. Not the most riveting of stuff, although considering the eye-watering sums involved - even with the weak dollar, Lucasfilm think Mr Ainsworth owes them something north of five million quid - I imagine it rather occupies the mind if one is the defendant.
But then Mr Bloch announced that he would be parking that particular point for now and moving on to COPYRIGHT. Cue a sudden perking up of interest from the public seats (sole occupant by now: me); at last, some substantive discussion of the core legal issues!
The next forty minutes or so involved a voyage around sections 51 and 52 of the Copyright, Designs and Patent Act. This was rather a choppy trip, as CDPA 1988 is not one of the Law's most elegantly drafted pieces of legislation. Especially when read in conjunction with associated statutory instruments, what you in effect have is law that says that certain sorts of work are protected by copyright:
-- Except when they look more like industrial designs
---- BUT, this doesn't apply to some particular types of work
------- EXCEPT when some obscure SI says that it does
Oh, and the boundaries of these successively nested sub-sets of artistic or creative work are not very clear and subject to rampantly speculative interpretation. Mr Bloch at one point submitted that were one to read the law literally, Henry Moore would have had a greater or lesser period of copyright in his sculptures depending on whether or not he'd made a preliminary sketch. I'm not quite sure I agree with this interpretation of the law and by the looks of Mann J I rather doubt he did. On the other hand, Mr Ainsworth's submission that the helmet props made for A New Hope were industrial products will have to contend with the proviso in the Act that this only applies for stuff you're planning to put on the market at the outset, when clearly at the time all anyone was intending to do was make a few dozen props.
However, this line of discussion did lead to a rather stretched argument on behalf of Lucasfilm, to wit that the helmets produced for the film were in fact one set and thus a single artistic creation; Mr Bloch sought to pre-emptively rebut any argument that in many scenes only two or three were used at a time by observing that a set of cutlery is no less a set just because you only use a couple of place settings at a time... Moving swiftly on, he informed the Judge that, depending on how the law was to be interpreted, we might have to move beyond the main parts of the 1998 Act and look at (shudder) the Transitional Provisions...
"I can't wait" retorted Mann J, with only the slightest hint of judicial sarcasm. And then declared that actually he and the rest of us could, as it was now twenty past four and if he had to hear about 'transitional provisions' he could do so the next day. Court rose.
Slowly, it turned out. The case is now in its twelfth day and looks set to run into early next week. The claimants are summing up, which given the amount of evidence that must have been led in such a long trial is clearly going to take a while. When I entered court Michael Bloch QC, lead counsel for Lucasfilm, was addressing Mr Justice Mann on the question of the extent to which the High Court could enforce the judgment that Lucasfilm had obtained in the USA against Mr Ainsworth. This being a US judgment, Lucasfilm seemingly thought of an insanely optimistic estimate of how much business they might have lost, and the court had then multiplied it up as punishment for being naughty in the way US courts are wont to do. That isn't how it's done over here, and it turns out that there's even an Act of Parliament to limit the extent to which such (by our standards) ludicrously inflated awards of damages can be enforced in the UK. Not the most riveting of stuff, although considering the eye-watering sums involved - even with the weak dollar, Lucasfilm think Mr Ainsworth owes them something north of five million quid - I imagine it rather occupies the mind if one is the defendant.
But then Mr Bloch announced that he would be parking that particular point for now and moving on to COPYRIGHT. Cue a sudden perking up of interest from the public seats (sole occupant by now: me); at last, some substantive discussion of the core legal issues!
The next forty minutes or so involved a voyage around sections 51 and 52 of the Copyright, Designs and Patent Act. This was rather a choppy trip, as CDPA 1988 is not one of the Law's most elegantly drafted pieces of legislation. Especially when read in conjunction with associated statutory instruments, what you in effect have is law that says that certain sorts of work are protected by copyright:
-- Except when they look more like industrial designs
---- BUT, this doesn't apply to some particular types of work
------- EXCEPT when some obscure SI says that it does
Oh, and the boundaries of these successively nested sub-sets of artistic or creative work are not very clear and subject to rampantly speculative interpretation. Mr Bloch at one point submitted that were one to read the law literally, Henry Moore would have had a greater or lesser period of copyright in his sculptures depending on whether or not he'd made a preliminary sketch. I'm not quite sure I agree with this interpretation of the law and by the looks of Mann J I rather doubt he did. On the other hand, Mr Ainsworth's submission that the helmet props made for A New Hope were industrial products will have to contend with the proviso in the Act that this only applies for stuff you're planning to put on the market at the outset, when clearly at the time all anyone was intending to do was make a few dozen props.
However, this line of discussion did lead to a rather stretched argument on behalf of Lucasfilm, to wit that the helmets produced for the film were in fact one set and thus a single artistic creation; Mr Bloch sought to pre-emptively rebut any argument that in many scenes only two or three were used at a time by observing that a set of cutlery is no less a set just because you only use a couple of place settings at a time... Moving swiftly on, he informed the Judge that, depending on how the law was to be interpreted, we might have to move beyond the main parts of the 1998 Act and look at (shudder) the Transitional Provisions...
"I can't wait" retorted Mann J, with only the slightest hint of judicial sarcasm. And then declared that actually he and the rest of us could, as it was now twenty past four and if he had to hear about 'transitional provisions' he could do so the next day. Court rose.
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Date: 2008-04-25 03:48 am (UTC)no subject
Date: 2008-04-25 09:01 am (UTC)What's the difference? Well, to take two extreme examples, if a professional sculptor carves a figure with a mind to selling a few reproductions, then that is viewed in UK copyright law as a sculpture, a piece of art as generally understood, and is protected for the life of the creator plus seventy years.
If on the other had an engineering designer makes a preliminary model of, say, a doorhandle, with the aim of making a casting from it to produce thousands of doorhandles for sale, then that is seen as an industrial design, and gets at most twenty-five years of protection.
Lucasfilm are saying that the helmet design fell into the first category - it was part of the artwork for the film, and just because a number of copies had to be made for filming purposes this doesn't stop it technically being a sculpture and subject to full copyright protection.
Mr Ainsworth is saying that no, the helmet was meant for large-scale reproduction from the outset and so counts as an industrial design. Seeing as A New Hope was made over thirty years ago then if this is the case the design is out of protection.
The problem for Mr Justice Mann is that this is a borderline case - the helmet design isn't High Art, but equally it's not (or at least wasn't back in 1976) a mass production item either. So which legal provision applies? The law, as I noted, is almost fractally complex at the boundary, and so yes, I think Lucasfilm's counsel was making a reasonable (if perhaps weak) argument by using the example of a famous sculptor to illustrate the odd results that might crop up if the law was to be interpreted in one possible way.