AA case begins

[Jayn]

http://scifiwire.com/2009/12/george-lucas-must-share-r.php

 

[Qui-Gonzalez]

I think the law was poorly interpreted.

There it is, Chris. Exoray's point about the idiocy of the judges in question stands, in my opinion.

 

[TheRealFennShysa]

A friend of mine (who's actually a copyright and IP lawyer who has won cases for several famous authors) posted this on a post I made about the case:

O.K. If the US is recognizing a copyright in these designs, I would think that the UK, as signatory to the Berne Convention, would be obligated to honor the judgment of the US courts on this matter.

OTOH, it is an interesting twist on work made for hire, which isn't recognized under the EU.

I'm sure it isn't over yet, because Lucas has very deep pockets.

 

[Dpp1978]

If they do see the initial sculpt as a work of art then I don't see how they can say the helmets are not. The helmets are then copies of a work of art and AA's replicas would then be unauthorized copies of a work of art for which he has no right to.

That's like saying a bronze sculpture is not a work of art because it's a copy of an original clay. In fact, the original sculpture is almost less a work of art because it's an ends to a means. The final product/artwork is the helmet.

The helmets were made to be seen on screen. I would interpret that as being art on public display. The term "industrial design" implies functionality and these helmets are designed for form, not function.

I think the law was poorly interpreted.

The legal status of the original sculpts was not ruled on so it can be argued that it is or isn't sculpture depending on the intention of the sculptor at the time.

The cast bronze analogy is flawed. When applying the legal guidelines you have to look at the end product and its purpose. If you take the time and effort to cast something in bronze you can infer an intention it is meant to be a work of sculpture. It isn't decisive, but is clearly indicative.

This brings another issue discussed in the judgment; that of permanence. It was another factor which was deemed to imply an intention to create a work of art. Your bronze is cast in a strong alloy presumably so it will last a long time. The helmets were made of thin plastic, and most were discarded after the production ended as they were too beaten up to be worth saving. Indeed some shots from late in the prodoction show sets of armour with bits missing, and other bits being held together with gaffer tape.

This implies they were made as a means to create art, not art in its own right. The clay sculpture used to create your bronze is intended to be destroyed in the process. It appears to fall into the same category. From this perspective the original clay sculpt of the helmet may be the same. Thinking about it this is probably the case. If so this does not detract from it being an artistic work, but it does preclude it from being a work of art; at least in a legal sense.

It all depends on the intention at the time it was made. This can be the only logical determining factor as the answer to the question, "What is art?" is deeply subjective. To have any certainty (which is a fundamental necessity) in law you have to objectify the question as much as possible. To that end all concerns about artistic merit were expressly discarded as these are philosophical questions with no real answer; unanswerable questions have little place in a court of law.

As gonk27 and Lord Abbadon have both noted times have changed since 1976. It may well be possible to argue artistic intention in prop making in future cases as there is now a merchandising culture which simply did not exist in 1976; in fact it was Star Wars which is largely responsible for its genesis.

It may be possible to argue that the props are no longer a means to an end but have a whole sub-culture built up around them, and in making props you are not only catering to the immediate needs of the film maker, but also to those of that sub culture. This very board acts as evidence of this point, especially as it counts many of those responsible for making these props as members. Of course this argument only works for more recent films (if at all) but it is a start.

I apologise for the length of these answers, but this case facinates me on an intellectual level as well as a purely geeky one. In fact it was in researching it that I stumbled across this community.

I understand why some here are unhappy with this decision; I myself am conflicted. The problem is this is a law being interpreted into a situation it was never designed to deal with, and being made to fit as best it can. The problem is with the political situation in the UK being as it is, it will be very low on the agenda to change it.

 

[Dpp1978]

A friend of mine (who's actually a copyright and IP lawyer who has won cases for several famous authors) posted this on a post I made about the case:

O.K. If the US is recognizing a copyright in these designs, I would think that the UK, as signatory to the Berne Convention, would be obligated to honor the judgment of the US courts on this matter.

OTOH, it is an interesting twist on work made for hire, which isn't recognized under the EU.

I'm sure it isn't over yet, because Lucas has very deep pockets.

From my understanding the Berne convention is purely about the international recognition of copyright, and says nothing about enforcement of them. It leaves it to individual states to legislate for themselves. In otherwords if you make a copyrighted work in tne US, the copyright is recignised by the UK courts, but can only be challenged in the UK under UK law. The direct enforcement of extra-judicial judgments would require a separate convention or treaty.

Work for hire does exist in the UK. AA lost on that point in both the original trial and the appeal.

 

[Paracord Junky]

I'm just wondering... didn't they copyright the stormtrooper and any other likeness through the merchandising, such as figures, kits and full size statues? How the heck won't that copyright protect the likeness from infringement? That's just so odd, imo.

they might have but for the fact none of those toys looks anything like the characters they're based on.

 

[Treadwell]

The helmets were made of thin plastic, and most were discarded after the production ended as they were too beaten up to be worth saving. Indeed some shots from late in the prodoction show sets of armour with bits missing, and other bits being held together with gaffer tape.

This implies they were made as a means to create art, not art in its own right.

On the contrary! If they were simply of utilitarian purpose, then they would've been REAL helmets that actually could protect a person's head.

What does durability have to do with anything? Just as a balsa wood sculpture of an axe wouldn't be able to chop anything, these are representations, not bona fide helmets. The very fact that they do not function as practical helmets actually supports the notion that they are works of art.

 

[defstartrooper]

In this case, I think British law is saying that the items used to make Star Wars, such as the plastic suit on the wooden film set were not created initially to be valued in themselves - but that their purpose was only to represent fictional characters in a story. The film itself as a whole would be the work of art, and not the tools-of-the-trade that were used to make it. Once the film is completed, and their reason for being built is over (I think the law is saying) they have no artistic purpose left.


... if I've grasped this correctly then LFL have dropped the ball. They should have pressed home that no matter how British law defines their reason for being built originally, these days stormtrooper helmets have become works of art. They stand in glass cabinets in museums the world over for the purpose of being admired for what they are by people that appreciate the film. Props used to be thrown away when a film was finished, but these days they often take on a new life as objects in collections or displays.

In this case there's no difference in purpose between a stormtrooper helmet on display in a museum, and a piece of sculpture that people who like these things pay money just to go and see. It doesn't matter why either of them was made in the first place. A shark in a tank of formaldahide is accepted as a work of art, but the thing was born as a fish!

Yeah but there's tonnes of things on display in museums that aren't classed as art.
You wouldn't class Chaplins hat or cane as art for example, they have historical significance in movies and would be displayed as such but not classed as art.
The Mona Lisa is a work of art you wouldn't class a poster of it as such though.

I think it's downright awful AA is still in business after his lies about sculpting the helmet. i would never ever buy from or deal with him in a million years for that reason, i honestly couldn't give a toss about LFL though, their interests aren't with any artistic merit it's purely financial for them.

At least the truth about the original artists has come out now and for me that's the important thing.

 

[ghostryder]

I know this has been asked already, but legally, the difference between a Hasbro action figure and a prop replica is what exactly?

I really don't get... Films are art (Academy of Motion Picture ARTS and Sciences)... I get why cameras and lights wouldn't be, but why wouldn't anything created for them (props, costumes, sets) also be considered art?

I smell shenanigans...

 

[Dpp1978]

On the contrary! If they were simply of utilitarian purpose, then they would've been REAL helmets that actually could protect a person's head.

What does durability have to do with anything? Just as a balsa wood sculpture of an axe wouldn't be able to chop anything, these are representations, not bona fide helmets. The very fact that they do not function as practical helmets actually supports the notion that they are works of art.

Their intended utility was never to work as protective gear, but to represent protective gear in a cinematic context. In that context they are successful.

If they had made (or used pre-existing) functioning helmets they would have had dual utilities, but one of them would have been totally wasted.

In this case "utilitarian" is given a broader definition than is perhaps commonly used, and "sculpture" is given a narrower one.

Nowhere in the judgment does it say these cannot be defined as works of art from a philosophical perspective; just that they don't meet the legal criteria to be defined as such. Outside of legal practice the niceties of exact legal definitions are of very little direct consequence; and they are often quite different from their everyday alternatives.

When something is given a legal definition it is for a specific purpose; to create a common point of reference so decisions can have a modicum of certainty and consistency. How well this works in practice is a different matter, but that is the theory.

In this case the judge has applied the legal guidelines and come up with a result which most here seem to disagree with. That doesn't mean if you disagree you are wrong, but you are not restricted by the need to make your definition work within a legal framework, and have the freedom to decide based on your own personal criteria.

Many things which would ubdoubtably be art from a legal point of view I would have trouble accepting as such, and vice versa. No legal system can please all people all of the time. Hopefully it can meet the needs of most of the populus most of the time.

 

[Dpp1978]

I know this has been asked already, but legally, the difference between a Hasbro action figure and a prop replica is what exactly?

I really don't get... Films are art (Academy of Motion Picture ARTS and Sciences)... I get why cameras and lights wouldn't be, but why wouldn't anything created for them (props, costumes, sets) also be considered art?

I smell shenanigans...

A Hasbro action figure's status was examined by the court and was deemed to not be a sculpture. Its primary purpose was as a plaything so was deemed to be a utilitarian object.

A prop replica however may be a sculpture even if the original prop isn't. If you create a replica you (usually) do so not for any utilitarian purpose, but to put it on a shelf and admire it. Your intention is to make an object the entire purpose of which is to emulate the aesthetic qualities of the original, and be admired because that quality.

It is all down to the intention you have while you make it.

Conversely if the prop was made primarily for its utilitarian value (even if that value is entirely in how it looks), it will notbe enough to meet the standard as set out in this case.

It is a counterintuitive state of affairs I know, and it isn't any easier to grasp for lawyers or academics either. The fact is some laws seem to make little sense taken out of context, and this is one of them.

 

[lonepigeon]

I would consider props and costumes are art for the mere fact that they are created to be seen. They are a part of the films.
How can the costumes not fall under the copyright of the film?

 

[defstartrooper]

I know this has been asked already, but legally, the difference between a Hasbro action figure and a prop replica is what exactly?

I really don't get... Films are art (Academy of Motion Picture ARTS and Sciences)... I get why cameras and lights wouldn't be, but why wouldn't anything created for them (props, costumes, sets) also be considered art?

I smell shenanigans...

Van Gogh's sunflowers painting is considered art, the flowers he painted wouldn't be, the canvas wouldn't be, the paints wouldn't be, the brushes wouldn't be.

 

[defstartrooper]

I would consider props and costumes are art for the mere fact that they are created to be seen. They are a part of the films.
How can the costumes not fall under the copyright of the film?

By that token then studios should pay royalties to everybody seen in Levi jeans in their films for example to the Levi jean company, they don't though do they.

 

[BDK]

By that token then studios should pay royalties to everybody seen in Levi jeans in their films for example to the Levi jean company, they don't though do they.

I thought they actually had to? Or an agreement with clothing companies used at least.

 

[Dpp1978]

I would consider props and costumes are art for the mere fact that they are created to be seen. They are a part of the films.
How can the costumes not fall under the copyright of the film?

Well traffic lights are created to be seen. Does that make them art too?

The costumes pre exist the film and are separate from it. While an image of the costume may be art (moving or static) and attract copyright it is a separate set of rights than those in the costume. In a sense the images of the Stormtroopers in the movies are part of a derivative work based on the myriad parts which it is made up of.

Because the the costumes pre exist the film, the rights in them take precedence over the rights derived from the movie. As the Stormtrooper's appearance is now in the public domain in the UK, you can exploit it free from the copyright in any later work derived from it.

 

[R2B9]

Somebody, somewhere is going to get their degree by writing about this case. Absolutely fascinating... cultural change, artistic interpretation, legal evolution. Man, this would make a great MOVIE!

 

[Lord Abaddon]

they might have but for the fact none of those toys looks anything like the characters they're based on.

:lol

On the contrary! If they were simply of utilitarian purpose, then they would've been REAL helmets that actually could protect a person's head.

What does durability have to do with anything? Just as a balsa wood sculpture of an axe wouldn't be able to chop anything, these are representations, not bona fide helmets. The very fact that they do not function as practical helmets actually supports the notion that they are works of art.

u·til·i·tar·i·an (y-tl-târ-n)
adj.
1. Of, relating to, or in the interests of utility: utilitarian considerations in industrial design.
2. Exhibiting or stressing utility over other values; practical: plain, utilitarian kitchenware.
3. Of, characterized by, or advocating utilitarianism.

As mentioned they were a utilitarian object made for the purpose of creating a work of art, but they themselves are not art. That is the definition through the law. There was no other thought during the production of ANH but to portray the Stormtrooper for the movie. The helmet, design, etc. were to that end. Not as an object of art to be admired or lauded over.

I can now understand the thinking behind this and how society and it's view of movie and TV art have changed dramatically. Heck, even with just action figure collecting. If you told someone in 1977 their 10 year old son's Luke Skywalker $1.97 action figure mint on card would be $850 today they would have laughed at your face. But now ...

Somebody, somewhere is going to get their degree by writing about this case. Absolutely fascinating... cultural change, artistic interpretation, legal evolution. Man, this would make a great MOVIE!

No kidding! An incredibly interesting case from start to finish! And I thank all the RPF members, new and old, who have contributed in so many ways to all the discussion through the years (!).

 

[lonepigeon]

Well traffic lights are created to be seen. Does that make them art too?

A costume's sole purpose is to be seen as part of a film or theater production - part of an overall work of art (entertainment).

A traffic light's purpose is to signal a driver to react (stop, go, yield).

The costumes pre exist the film and are separate from it. While an image of the costume may be art (moving or static) and attract copyright it is a separate set of rights than those in the costume.

I don't see how the rights can be separated.
If someone was selling copies of drawings from the original animated Snow White would that be legal in the UK?
The drawings pre exist the animated film, but they are part of it - the two are intrinsically linked. Since the film is an undisputed copyrighted piece of art I don't see how it can be legal to copy any part of it.

So essentially the UK courts are saying anyone is free to copy the Stormtrooper costume, but you may still not copy a Stormtrooper in another form (sculpture, drawing, etc) because that would fall under the film's copyright. That's idiotic.

 

[Qui-Gonzalez]

To even argue that the interpretation is anything but idiotic is trying to build a house on a sand foundation. I am failing to see how anyone can see the process in crafting these things as anything BUT sculpture(Read ART).

Look, Rodin's "The Thinker" is a prime example of a many times molded piece of art. Because it was molded, does it fall under "Industrial Design", like Justice Mann was trying to say with the Troopers? Does it being a piece seen on film diminish it's artistic merits as a sculpture, AND a two dimensional piece of art? How many movies has "The Thinker" been seen in? Does that make that piece a piece of Industrial Design?