Star Wars Copyright Claims

5 August 2008

By Michael Coyle

Fans of Star Wars watched with considerable interest as a case reached the High Court which concerned the reproduction of replicas of various props used in the first Star Wars film. This case concerns the production of uniforms for the first of the films in the series, which is known as "Star Wars IV A New Hope" and which was first shown in 1977. The Claimant was called by his Justice Mann as "Lucas". One of the most abiding images in the film was that of the Imperial Stormtroopers. These were soldiers clad in white armour, including a white helmet which left no part of the face uncovered. The second defendant (Mr Ainsworth) made that armour for the film in vacuum-moulded plastic. He has recently started selling versions to members of the public, both in the form of a complete set and the helmet alone.

Lucas claimed that this infringed the copyright of the claimant. He also sells replicas of other helmets. These again are said to infringe. He was able to make these things because he made the originals for the film, and has kept the tools or moulds on which they are made. The action sought to enforce the intellectual property rights of the claimant. It was based on copyright infringement and passing off. There was also a contractual claim, allied to a claim based in confidence. They all seek essentially the same thing in relation to all the helmets and armour.

Lucas claimed the following against the Defendants:-

(i) A claim for infringement of copyright.

(ii) A claim in passing off.

(iii) A claim to such copyrights as Mr Ainsworth might himself have acquired.

(iv) A claim in confidence to restrain Mr Ainsworth from making his helmets and armour.

(v) A claim to enforce the US monetary judgment.

(vi) A claim to enforce US copyright (but no other US rights).

Mr Ainsworth counterclaims to enforce his own alleged copyright in the helmets.

A key question was whether or not the Stormtrooper helmets, were subject to copyright. The categories of copyright can be defined under four categories of copyright: literary, dramatic, musical and artistic. The helmets would fall under artistic copyright. An additional question is whether the helmets are 'works of artistic craftsmanship'. The stormtrooper helmets had to be either sculptures or works of artistic craftsmanship. Mann J declared the suits were not sculptures

Mann J sought to assist in defining what a sculpture is in copyright law "A pile of bricks, temporarily on display at the Tate Modern for 2 weeks, is plainly capable of being a sculpture. The identical pile of bricks dumped at the end of my driveway for 2 weeks preparatory to a building project is equally plainly not. One asks why there is that difference, and the answer lies, in my view, in having regard to its purpose. One is created by the hand of an artist, for artistic purposes, and the other is created by a builder, for building purposes. I appreciate that this example might be criticised for building in assumptions relating to what it seeks to demonstrate, and then extracting, or justifying, a test from that, but in the heavily subjective realms of definition in the artistic field one has to start somewhere."

In relation to what is a work of artistic craftsmanship then he found comfort in Tipping J in the New Zealand case of Bonz Group v Cooke :

"for a work to be to be regarded as one of artistic craftsmanship it must be possible fairly to say that the author was both a craftsman and an artist. A craftsman is a person who makes something in a skilful way and takes justified pride in their workmanship. An artist is a person with creative ability who produces something which has aesthetic appeal."

This case is a serious attempt by Mann J to seriously consider what a sculpture and work of artistic craftsmanship is in English law. The previous case law and decisions in english law is rather messy and Mann has done a sterling job in seeking to define these two important issues.

The case effectively means that there is no copyright protect for props and costumes. Design Right may be infringed but they are not sculptures or artistic works.

Michael Coyle is a solicitor advocate who specialises in information technology law and intellectual property law.