Posts on this blog represent my opinion. It may be my considered opinion on the basis of my formal study of law and technology. But it is not legal advice. It must not be treated as, or acted upon as, legal advice and no liability is accepted for doing so.

Monday, 24 January 2011

And it's going to be a Trilogy!

I started this blog with a post about Lucasfilm v Ainsworth, and just over a year ago I discussed the appeal, in which Mr Ainsworth - former prop-maker for the original Star Wars and now manufacturer of replica Stormtrooper attire - had not only maintained his victory on the copyright points but had overturned the decision that Lucasfilm's US judgment was enforceable against him. I felt at the time that there was every prospect of the case going all the way to the then-new Supreme Court and it turns out sure enough the Supreme Court website is now listing Star Wars III: The Revenge of the Claimant to begin on 7th March. (In fact the news came out a good fortnight ago, but I will plead the start of pupillage as an excuse for not noticing at the time.)

More details have been supplied by The Lawyer. George Lucas has deployed the big guns this time around, with Jonathan Sumption QC joing Robert Bloch QC, counsel in the original hearing and the appeal. That Sumption - reputedly one of the most expensive members of the Bar - has been instructed is indicative of the seriousness with which Lucasfilm is taking what it will see as a serious threat to its merchandising rights. As this article puts it, "Hollywood believes the outcome will have major implications for the UK film industry and the movie moguls came out in force in support of Lucas’s fight to have the case heard by the Supreme Court."

It would be a mistake though to see this as a case entirely about copyright. Indeed, my own prediction is that the Supreme Court will not disturb the well-reasoned argument of Mr Justice Mann about the definition of sculpture under CDPA 1988, as endorsed by Lord Justice Jacob, the Court of Appeal's leading specialist on IP matters. What the case may by now be focussing more on is the question of jurisdiction and enforceability of judgments, the area where the Court of Appeal reversed the original decision. Writing in the Cambridge Law Journal, Pippa Rogerson has made a cogent argument that the Court of Appeal misapplied the Brussels 1 Regulation in holding that a copyright dispute in the USA is not justiciable in England. (See CLS [2010] 69(2), 245-247.) If the Supreme Court accepts this view, then Ainsworth may well find his case being assessed under the copyright law pertaining in California, under which it is apparently clear that he would have infringed Lucasfilm's rights. Such a decision could have far wider-ranging implications though, potentially making it far easier for US-based rights-holders to sue for copyright infringement in England.

Whatever happens, one firm prediction I'll make is that this case will get even more coverage this time around. Brace ourselves for more Star Wars themed legal humour, we must.

2 comments:

Robert Sneddon said...

I know that Lucasfilm was attempting to check the sale and distribution of unauthorised replica props from Star Wars as far back as 1979. I saw one of the production company people from Pinewood stop a couple of hall costumers dressed as Stormtroopers at the 1979 Worldcon in Brighton to ask them where they had got the moulds for the armour pieces from. They explained that they had scratch-built them, not copied them from film company parts and that was that.

a-cubed said...

I find Bob's comment above interesting in that it's the copying of the exact piece by way of a mould that they complained about rather than the copying of the appearence. Leaving aside the current law issues on this particular case, one of the problems we have at present with much of so-called IP law is the blurry boundaries which have been pushed out and out and out again over what's covered. No longer is confusion by customers necessary for trademark infringement, just making some money from something which includes the use of a trademark term may be enough (scooby-doo.co.uk and ihateryanair.co.uk, for example). No longer is there a significant idea/expression dichotomy in copyright (Harper Bros v Kaplan). Traditional art can be claimed by producing a non-traditional variant and then applied back to the traditional source (McCartney and Mull of Kintyre). ALl this is doing more harm to creativity and culture than all the unauthorised copying in the world.