The 1977 movie Star Wars Episode IV: A New Hope was the subject of a recent lengthy trial at the High Court in London, at the heart of which lay the fiendishly difficult question of what – in English copyright law – is an artwork.
For the past three centuries or more throughout the developed world, legislatures and law courts have always rightly been reluctant to define what constitutes art. Sometimes a court is forced to do so, as in this Star Wars case, where the tribunal produced a remarkably valuable and enlightened ‘postmodern’ judgment. This now sets an English legal precedent that not only recognises and embraces non-traditional forms of artistic expression that have been developed during the 20th Century and are developing to date, but also means that those new forms also enjoy the full copyright protection that has long been given to traditional art forms. How did a forensic examination of Star Wars bring this about?
In the words of the trial judge, Mr Justice Mann: ‘This is a case about the reproduction of replicas of various props used in the first Star Wars film. The Star Wars films are a series of science fiction films set at some different time and in another part of the Universe, and which feature the struggle between good and evil. They contain a heavy militaristic element, and that in turn requires uniforms. This case concerns the production of uniforms for the first of the films in the series … One of the most abiding images in the film was that of the Imperial Stormtroopers … 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. That is said to infringe the copyright of the claimants [George Lucas and his Star Wars merchandising companies]. He also sells replicas of other helmets. These again are said to infringe. He is 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.’
Lucas’s conceptualisation of the film included designing the Stormtrooper armour. He had commissioned and paid Andrew Ainsworth, an English designer and fabricator, to produce prototypes and, eventually, the vacuum-moulded plastic armour used in the film – based upon Lucas’s original design drawings. As owner of the copyright in those original designs, Lucas claimed that Ainsworth’s recent fabrication and merchandising of the armour was a breach of Lucas’s copyright, for which he should now be financially compensated by Ainsworth who should also cease all such activity.
Ainsworth did not dispute that he had in fact copied and merchandised Lucas’s copyrights in the original armour designs. Instead, his defence relied upon a special copyright infringement exception: UK’s copyright law states that ‘it is not an infringement of any copyright in a design document or model recording or embodying a design … to make an article to the design or to copy an article made to the design’, unless the original design document or model is for an ‘artistic work’. The reason for this apparently odd exception is, in the words of the trial judge, ‘to allow generic industrial spare parts to be made by third party suppliers without their being accused of infringement of copyright in underlying drawings which usually preceded the manufacturer’s “original” spare part’. Ainsworth used this provision to argue that Lucas’s original designs for the armour were not for ‘artistic works’, and that he and anyone else were therefore free to make articles copied from such designs. Lucas argued the opposite: that his original designs were for ‘artistic works’. Mr Justice Mann had to decide whether the armour constituted ‘artistic works’.
UK copyright law defines ‘artistic works’ by reference to the medium(s) or form(s) used by the artist, and divides them into three specific categories: irrespective of their artistic contents or qualities, painting, graphic works, photographs, collages and sculpture; works of architecture; and works of artistic craftsmanship. It was only possible for the armour props, being three-dimensional articles, to be works of sculpture (irrespective of artistic merit) or of artistic craftsmanship. Was the armour either, both, or neither?
The judge considered the legal meaning of ‘sculpture’ in the light of previous leading court cases in point, and developed a series of ‘guidance factors’, rather than ‘hard and fast rules in an area where subjective considerations are likely to intrude’. They are summarised as follows:
- ‘sculpture’ can be things going beyond what one would normally expect to be art in the sense of the sort of things that one would expect to find in art galleries
- no judgment is to be made about artistic worth
- not every three-dimensional representation of a concept can be regarded as a sculpture
- the essence of a sculpture is that it should have, as part of its purpose, a visual appeal in the sense that it might be enjoyed for that purpose alone, whether or not it might have another purpose as well; the purpose is that of the creator, who may fail, but that does not matter (no judgments are to be made about artistic merit) because it is the underlying purpose that is important
- for example, a pile of bricks, temporarily on display at Tate Modern for two weeks, is plainly capable of being a sculpture; the identical pile of bricks dumped at the end of a driveway for two weeks preparatory to a building project is equally plainly not; one asks why there is that difference, and the answer lies 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.
These guidelines were then applied to the Stormtrooper armour and the judge concluded that they were not sculptures; they were film props or costumes, whose primary function was utilitarian.
Similarly, consideration was given to the legal meaning of ‘works of artistic craftsmanship’. It is important to bear in mind that – unlike sculptures – ‘works of artistic craftsmanship’ must possess ‘artistic merit’. The judge concluded that, although the armour props/costumes were undoubtedly works of craftsmanship, they were not artistic because ‘it was no part of their purpose that it should in any way appeal as a piece of art; or that it should be admired for any aspect of its appearance as such; or that it should do anything more than what was necessary to give the correct impression of the character inside (and perhaps an environment) when used in a film (with all the assistance that the techniques of filming can to do to enhance an impression)’.
Accordingly, so far as the parties were concerned, the court held that Lucas’s arguments failed, Ainsworth’s prevailed and that he had not infringed the copyright in Lucas’s original armour designs. As a legal precedent applying to future cases, the court adopted a refreshingly new approach to judging what is capable of being an ‘artistic work’: strong emphasis is placed on the artist’s intentions, and suggests that the new legal meaning of ‘artistic works’ includes works that have hitherto been regarded as outside the traditional definition – such as installations, readymades, found objects, mixed media works, time-based art, and all other emerging forms manifest in more than two dimensions.
© Henry Lydiate 2009