Star Wars II: Ainsworth Strikes Back

Nearly a year and a half ago my first substantive entry was about the High Court judgment in Lucasfilm v Ainsworth, alias the Stormtrooper Armour Case. I said at the time:

"Both sides will want to appeal; Lucasfilm against the decisions on copyright and enforceability of the US judgment, Ainsworth against the decision that he is liable under US copyright law. If permission to appeal is granted - and the legal issues are controversial enough that I would be astonished if it is not - then we are unlikely to see a hearing until the middle of 2009 or so."

Ah, such naive optimism! The appeal hearing wasn't until November, and the judgment (Rix, Jacob and Patten LLJ) was handed down last Wednesday. Other minor matters (plus my job) have been occupying me since then, during which time several bloggers far more informed and eloquent than me have given excellent summaries of the outcome. I fully endorse the IPKat's disappointment that the meaning of 'Work of Artistic Craftsmanship' was not further discussed, whilst I still feel that the array of (not inexpensive) Star Wars memorabilia on sale at such geek emporia as Forbidden Planet lend some support to The 1709 Copyright Blog's nagging anxiety that something as iconic as the Imperial Stormtrooper must have some element of artistic merit. But that was not quite the question Their Lordships were being asked to rule on, and in the end Lucasfilm v Ainsworth stands as an illustration of how trying to draw a boundary between Industrial Design and Artistic Copyright is bound to lead to cases where a work that would seem to belong on the fact of it in one category ends up being placed in the other.

This is very much borne out by the reaction of web sites and blogs aimed at science fiction fans, as seen in this post on io9. Almost without exception the reaction is one of disbelief that the armour was not deemed to be a work of art, although it seems that few commentators appreciate that this judgment has a relatively narrow scope - it is certainly not the end of all IP protection for Lucasfilm, for instance. Meanwhile, for a perspective from the movie prop and memorabilia business, see this write-up from The Original Prop Blog.

Andrew Sharpe of Charles Russell probably has the best title of any write-up of this case; yes, I know Jeremy Phillips beseeches us not to use dreadful puns for IP reports, but I can't help but liking "Obi-Wan Jacobi"! As well as an excellent summary of the issues at hand, he also notes that Lucasfilm have very strong motivation for seeking a further appeal to the Supreme Court, and not just on the basis that its Star Wars productions tend to come in trilogies...