What is Art? - Southwestern Law School
What is Art? - Southwestern Law School What is Art? - Southwestern Law School
136 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2of reasoning in the judgment and whether it offers an arguably persuasiveauthoritative and contemporary yardstick about the legal meaningof art—not only sculpture—in our contemporary culture.The case concerns the 1977 movie Star Wars Episode IV: A NewHope. The first lawsuit was filed in 2005 by George Lucas and hisStar Wars merchandising companies against an English props maker,Andrew Ainsworth, and his company. In 2004 Ainsworth had reproducedreplicas of the white Imperial Stormtrooper uniforms used inthe film, which he had sold in the US. Lucasfilm claimed ownershipof copyrights in the uniforms, and violation thereof by Ainsworth,and was granted a default judgment by US District Court, Central Districtof California, in September 2006 for $20 million including $10 milliontriple damages under the Lanham Act.Ainsworth lived in the UK and had no assets in the U.S. Lucastherefore filed lawsuits in the UK to enforce his US default judgementin the UK; further or alternatively, to (re-)claim violation by Ainsworthof US copyrights in the Imperial Stormtrooper uniforms. In2008 London’s High Court of Justice tried and rejected the claims.Lucas appealed to the Court of Appeal of England and Wales, whichin 2009 effectively supported the High Court’s decisions. Lucas then appealedto the UK Supreme Court, and that court’s reasoning in supportof its decision about the legal meaning of “sculpture” is both illuminatingand instructive, and merits detailed consideration.As the highest UK appellate court, the UK Supreme Court’s focuswas on copyright legislation, its interpretation and application by thetwo lower courts, and whether there had been judicial errors. The findingsof fact in the first trial court were not a final appeal issue. Thegravamen of the final appeal was the intellectual property rights in“various artefacts” made for use in the film, of which the ImperialStormtrooper helmet was agreed to be the paradigm that would be decisiveof the appeal as a whole. The helmet was helpfully described bythe first trial judge as follows: “One of the most abiding images in thefilm was that of the Imperial Stormtroopers. These were soldiers cladin white armour, including a white helmet which left no part of theface uncovered . . . The purpose of the helmet was that it was to beworn as an item of costume in a film, to identify a character, but inaddition to portray something about that character—its allegiance,force, menace, purpose and, to some extent, probably its anonymity.It was a mixture of costume and prop.” 111111. [2008] EWHC 1878 (Ch), [2009] FSR 103, paras [2] and [121].
WHAT IS ART? 137Lucas conceived the Star Wars screenplay. Between 1974 and 1976he commissioned drawings and paintings visualising the Imperial Stormtroopersfrom a UK artist, Ralph McQuarrie; and three-dimensional claymodels from a freelance a UK prop-maker, Nick Pemberton. The appellateRespondent, Ainsworth, specialised in making vacuum plasticmoulds, and Lucas commissioned him to make prototypes and then50 helmets that were used in shooting the film—which was made atElstree studios, also in the UK. The Appellants were companiesowned by Lucas, known collectively as Lucasfilm, which owned thecopyrights in the artefacts created for the film. Over subsequent decadesLucasfilm developed a lucrative business licensing the merchandisingof miniature models of Star Wars characters, including the ImperialStormtroopers and their armour. It was agreed by the parties thatAinsworth had “used his original tools to make versions of the ImperialStormtrooper helmet and armour, and other artefacts . . . for sale tothe public.” Ainsworth’s overall sales in the U.S. had ranged from between$8,000 and $30,000.Why was the key issue before the UK Supreme Court whether thehelmet was a ‘sculpture’ within the meaning UK copyright legislation?UK copyright law was enacted by the Copyright Designs and PatentsAct 1988 (the 1988 Act). Section 1(1) (a) provides that copyright subsistsin original literary, dramatic, musical or artistic works. Section 4(1)defines “artistic work”, and includes “a graphic work, photograph,sculpture or collage, irrespective of artistic quality”. Section 4(2) providesthat “sculpture” includes “a cast or model made for purposes ofsculpture”.The 1988 Act also specifies a range of “acts permitted in relation tocopyright works” including “fair dealing”. In particular, Section 51(1)provides a defence to copyright infringement in relation to design documentsand models: “it is not an infringement of any copyright in adesign document or model recording or embodying a design for anythingother than an artistic work or a typeface to make an article to thedesign or to copy an article made to the design” (my emphasis). Andby Section 51(2): “nor is it an infringement of the copyright to issue tothe public, or include in a film or communicate to the public, anythingthe making of which was, by virtue of subsection 51(1), not an infringementof that copyright”. In other words, if the Lucasfilm’s designsfor Imperial Stormtrooper helmets/uniforms were “artistic works” withinthe meaning of the Section 1(1) (a) of the1988 Act, Ainsworth had infringedLucasfilm’s copyrights; Lucasfilm argued that they were, andin particular that they were “sculpture” as defined by Section 4(2). Ains-
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WHAT IS ART? 137Lucas conceived the Star Wars screenplay. Between 1974 and 1976he comm<strong>is</strong>sioned drawings and paintings v<strong>is</strong>ual<strong>is</strong>ing the Imperial Stormtroopersfrom a UK art<strong>is</strong>t, Ralph McQuarrie; and three-dimensional claymodels from a freelance a UK prop-maker, Nick Pemberton. The appellateRespondent, Ainsworth, special<strong>is</strong>ed in making vacuum plasticmoulds, and Lucas comm<strong>is</strong>sioned him to make prototypes and then50 helmets that were used in shooting the film—which was made atElstree studios, also in the UK. The Appellants were companiesowned by Lucas, known collectively as Lucasfilm, which owned thecopyrights in the artefacts created for the film. Over subsequent decadesLucasfilm developed a lucrative business licensing the merchand<strong>is</strong>ingof miniature models of Star Wars characters, including the ImperialStormtroopers and their armour. It was agreed by the parties thatAinsworth had “used h<strong>is</strong> original tools to make versions of the ImperialStormtrooper helmet and armour, and other artefacts . . . for sale tothe public.” Ainsworth’s overall sales in the U.S. had ranged from between$8,000 and $30,000.Why was the key <strong>is</strong>sue before the UK Supreme Court whether thehelmet was a ‘sculpture’ within the meaning UK copyright leg<strong>is</strong>lation?UK copyright law was enacted by the Copyright Designs and PatentsAct 1988 (the 1988 Act). Section 1(1) (a) provides that copyright subs<strong>is</strong>tsin original literary, dramatic, musical or art<strong>is</strong>tic works. Section 4(1)defines “art<strong>is</strong>tic work”, and includes “a graphic work, photograph,sculpture or collage, irrespective of art<strong>is</strong>tic quality”. Section 4(2) providesthat “sculpture” includes “a cast or model made for purposes ofsculpture”.The 1988 Act also specifies a range of “acts permitted in relation tocopyright works” including “fair dealing”. In particular, Section 51(1)provides a defence to copyright infringement in relation to design documentsand models: “it <strong>is</strong> not an infringement of any copyright in adesign document or model recording or embodying a design for anythingother than an art<strong>is</strong>tic work or a typeface to make an article to thedesign or to copy an article made to the design” (my emphas<strong>is</strong>). Andby Section 51(2): “nor <strong>is</strong> it an infringement of the copyright to <strong>is</strong>sue tothe public, or include in a film or communicate to the public, anythingthe making of which was, by virtue of subsection 51(1), not an infringementof that copyright”. In other words, if the Lucasfilm’s designsfor Imperial Stormtrooper helmets/uniforms were “art<strong>is</strong>tic works” withinthe meaning of the Section 1(1) (a) of the1988 Act, Ainsworth had infringedLucasfilm’s copyrights; Lucasfilm argued that they were, andin particular that they were “sculpture” as defined by Section 4(2). Ains-
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