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.