Simon Bradshaw (![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
major_clanger) wrote2008-04-29 08:22 pm
major_clanger) wrote2008-04-29 08:22 pm
Entry tags:
"Overbearing and underhand, young Lucas, your legal tactics are"
To RCJ Court 52 once again this morning, where Lucasfilm v Ainsworth is now stretching to Dickensian lengths. To be fair, every civil action that goes into a second week will sooner or later be touted as the new Jarndyce v Jarndyce, but that Imperial Stormtrooper has been standing in court for a good fortnight now.
My last report left us with Michael Bloch QC, lead counsel for Lucasfilm, summing up. He's still at it. We started off today with 'justiciability', which is a legal concept regarding the extent to which a court is actually competent and entitled to decide a matter. The matter in question was the details of the judgment that Lucasfilm obtained in the USA against Mr Ainsworth - in his absence - under which it was awarded $10 million. Depending on how the current case turns out, the High Court might have to decide how and if to enforce this judgment, and if so whether it needs to, or even can, review the details of the US court's decision.
This all got rather technical but it did lead to one interesting admission. Under questioning from Mr Justice Mann, Mr Bloch outlined how Lucasfilm would seek to proceed under various scenarios. If Lucasfilm lost in the current case, it would not seek to enforce the US judgment as it could not reasonably ask an English court to enforce a decision that it had clearly just disagreed with. On the other hand, if it won, it would agree to stay the US award in favour of whatever damages the High Court awarded. Mr Justice Mann quickly homed in on the fact that this meant that, in effect, Lucasfilm was proposing that either way it would not be pursuing the much-discussed $10M claim against Mr Ainsworth. "Do I detect," he asked, "that Lucasfilm's intent is not to grind Mr Ainsworth into the ground?" Mr Bloch conceded that it was not - according to him, Lucasfilm just wanted to establish control over its intellectual property and get any reasonably damages due in English law. At this point there was a little bit of judicial teeth-sucking; the Judge expressed the hope that, this far into a very long and extremely expensive trial, this had not come as a complete surprise to Mr Ainsworth and his legal team.
We then moved on to further discussion of the interaction between copyright and industrial design. Mr Bloch maintained for Lucasfilm that the Stormtrooper helmet was a 'sculpture' within the meaning of copyright law; it was clearly intended for artistic purposes and to be evocative rather than an item of practical use, and just because one could put in on one's head as well as on a shelf this didn't change matters. As he put it, Mr Ainsworth's lawyers were trying to create a distinction between 'high art' and more prosaic creations that just didn't exist in law. There was some discussion about what the average person would describe a Stormtrooper outfit as - would he or she say "it's a sculpture" or "it's a Star Wars costume"? Mr Bloch pointed out that if asked what was on top of the column in Trafalgar Square, most people would say "Nelson", but that if asked what sort of object would say "a statue", so questions like that were not always helpful in determining how people categorised objects, especially familiar or iconic ones.
Another topic was the number of costumes made and produced at the time. The film had been an immediate phenomenon ("I remember that!" retorted Mr Justice Mann) and there had been immediate demand for replica props. It was suggested that some 50 sets of armour had been made; rather awkwardly, this was exactly the cut-off point at which the law at the time stipulated that something moved from being reproduced art to an industrially-produced product, with very different IP protection. Argument ensued on whether it was '50 and more' or 'more than 50'; I wonder if Mr Ainsworth's lawyers will be digging through the files to see if they can find any more receipts...
The next bit of discussion centred on a point that has come up surprisingly often in design cases: whether an industrial design includes surface decoration or if this has its own separate IP protection that may in some cases be a full copyright. Here, the issue at stake was the painted-on detailing of the helmet, with Mr Bloch trying to advance the proposal that even if Lucasfilm lost and that the helmets were taken to be industrial designs, then the detailing would still be copyrighted by Lucasfilm. Would, the Judge asked, this mean that Mr Ainsworth could sell the helmet but not decorate it? That, Mr Bloch agreed, would be Lucasfilm's position. Judicial scepticism ensued.
Finally, just before I had to leave to meet![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
ladymoonray for lunch, we got on to the contract under which the helmets had been made. Lucasfilm was keen to assert ownership of any rights to the helmet rather than have a licence assigned by the court, so as to ensure their continued control over the merchandising. Mr Bloch put it that the agreement between Nick Pemberton (the original sculptor of the helmet design) and Lucasfilm had included a clause that had assigned Mr Ainsworth's rights. At this point I smelt a rat, and so did the Judge.
"So this contract included terms regarding Mr Ainsworth?"
"Yes."
"Who wasn't a party to the contract?"
"No..."
"This being 1976, well before the 1999 Act allowing contracts to include third party rights?"
"That is an analysis that does not attract me..."
Another useful lawyer's phrase to remember there; so much better sounding than "Oh bugger, Your Lordship has a point!"
So, who's winning? I've had to dip in and out, but it does sound as if Mr Ainsworth may have made good progress with the argument that the helmets were an industrial design rather than copyright items of artwork. But what was really notable was the admission that Lucasfilm, having dragged him to court with the Damoclesian sword of a $10M court judgment hanging over him, today seemed to say "of course, we wouldn't actually try to bankrupt the poor chap." I got the definite feeling that Mr Justice Mann was not at all impressed at this approach to resolving the underlying dispute, and it may well be that his eventual judgment will say something about it. How soon we see that judgment I can't say - the case seems set to run at least another couple of days, and given the amount of evidence presented and the complexity of some of the legal issues, I expect that judgment will be reserved, quite possibly for weeks or months. If I'm around when it's given though, I'll try to be in court to hear it.
My last report left us with Michael Bloch QC, lead counsel for Lucasfilm, summing up. He's still at it. We started off today with 'justiciability', which is a legal concept regarding the extent to which a court is actually competent and entitled to decide a matter. The matter in question was the details of the judgment that Lucasfilm obtained in the USA against Mr Ainsworth - in his absence - under which it was awarded $10 million. Depending on how the current case turns out, the High Court might have to decide how and if to enforce this judgment, and if so whether it needs to, or even can, review the details of the US court's decision.
This all got rather technical but it did lead to one interesting admission. Under questioning from Mr Justice Mann, Mr Bloch outlined how Lucasfilm would seek to proceed under various scenarios. If Lucasfilm lost in the current case, it would not seek to enforce the US judgment as it could not reasonably ask an English court to enforce a decision that it had clearly just disagreed with. On the other hand, if it won, it would agree to stay the US award in favour of whatever damages the High Court awarded. Mr Justice Mann quickly homed in on the fact that this meant that, in effect, Lucasfilm was proposing that either way it would not be pursuing the much-discussed $10M claim against Mr Ainsworth. "Do I detect," he asked, "that Lucasfilm's intent is not to grind Mr Ainsworth into the ground?" Mr Bloch conceded that it was not - according to him, Lucasfilm just wanted to establish control over its intellectual property and get any reasonably damages due in English law. At this point there was a little bit of judicial teeth-sucking; the Judge expressed the hope that, this far into a very long and extremely expensive trial, this had not come as a complete surprise to Mr Ainsworth and his legal team.
We then moved on to further discussion of the interaction between copyright and industrial design. Mr Bloch maintained for Lucasfilm that the Stormtrooper helmet was a 'sculpture' within the meaning of copyright law; it was clearly intended for artistic purposes and to be evocative rather than an item of practical use, and just because one could put in on one's head as well as on a shelf this didn't change matters. As he put it, Mr Ainsworth's lawyers were trying to create a distinction between 'high art' and more prosaic creations that just didn't exist in law. There was some discussion about what the average person would describe a Stormtrooper outfit as - would he or she say "it's a sculpture" or "it's a Star Wars costume"? Mr Bloch pointed out that if asked what was on top of the column in Trafalgar Square, most people would say "Nelson", but that if asked what sort of object would say "a statue", so questions like that were not always helpful in determining how people categorised objects, especially familiar or iconic ones.
Another topic was the number of costumes made and produced at the time. The film had been an immediate phenomenon ("I remember that!" retorted Mr Justice Mann) and there had been immediate demand for replica props. It was suggested that some 50 sets of armour had been made; rather awkwardly, this was exactly the cut-off point at which the law at the time stipulated that something moved from being reproduced art to an industrially-produced product, with very different IP protection. Argument ensued on whether it was '50 and more' or 'more than 50'; I wonder if Mr Ainsworth's lawyers will be digging through the files to see if they can find any more receipts...
The next bit of discussion centred on a point that has come up surprisingly often in design cases: whether an industrial design includes surface decoration or if this has its own separate IP protection that may in some cases be a full copyright. Here, the issue at stake was the painted-on detailing of the helmet, with Mr Bloch trying to advance the proposal that even if Lucasfilm lost and that the helmets were taken to be industrial designs, then the detailing would still be copyrighted by Lucasfilm. Would, the Judge asked, this mean that Mr Ainsworth could sell the helmet but not decorate it? That, Mr Bloch agreed, would be Lucasfilm's position. Judicial scepticism ensued.
Finally, just before I had to leave to meet
ladymoonray for lunch, we got on to the contract under which the helmets had been made. Lucasfilm was keen to assert ownership of any rights to the helmet rather than have a licence assigned by the court, so as to ensure their continued control over the merchandising. Mr Bloch put it that the agreement between Nick Pemberton (the original sculptor of the helmet design) and Lucasfilm had included a clause that had assigned Mr Ainsworth's rights. At this point I smelt a rat, and so did the Judge."So this contract included terms regarding Mr Ainsworth?"
"Yes."
"Who wasn't a party to the contract?"
"No..."
"This being 1976, well before the 1999 Act allowing contracts to include third party rights?"
"That is an analysis that does not attract me..."
Another useful lawyer's phrase to remember there; so much better sounding than "Oh bugger, Your Lordship has a point!"
So, who's winning? I've had to dip in and out, but it does sound as if Mr Ainsworth may have made good progress with the argument that the helmets were an industrial design rather than copyright items of artwork. But what was really notable was the admission that Lucasfilm, having dragged him to court with the Damoclesian sword of a $10M court judgment hanging over him, today seemed to say "of course, we wouldn't actually try to bankrupt the poor chap." I got the definite feeling that Mr Justice Mann was not at all impressed at this approach to resolving the underlying dispute, and it may well be that his eventual judgment will say something about it. How soon we see that judgment I can't say - the case seems set to run at least another couple of days, and given the amount of evidence presented and the complexity of some of the legal issues, I expect that judgment will be reserved, quite possibly for weeks or months. If I'm around when it's given though, I'll try to be in court to hear it.