What is Art? - Southwestern Law School

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138 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2worth argued the reverse; and that he had not infringed Lucasfilm’scopyrights by virtue of the acts permitted by Section 51(1) and (2).Moreover, Lucasfilm had a further legislative hurdle to overcome,which also depended on whether the helmets/uniforms were “artisticworks”, and “sculptures” in particular. Section 52 of the 1988 Act providesthat where an artistic work has been exploited (by or with thelicence of the copyright owner) through industrially producing andmarketing copies (of that artistic work) in the United Kingdom or elsewhere,copyright in that work is effectively unenforceable 25 yearsfrom the end of the calendar year in which such articles are first marketed.In other words, Lucasfilm’s merchandising of miniature modelsof Star Wars characters (including the Imperial Stormtroopers andtheir armour) for 25 years (from, say, 1978 to 2003) would on theface of it mean that Ainsworth could claim his copying and merchandisingof the helmets from 2004 was authorised by Section 52 of the1988 Act. However, there is one more twist: legislation supplementaryto the 1988 Act 112 provides an exception to the operation of Section 52in the case of “works of sculpture, other than casts or models used orintended to be used as models or patterns to be multiplied by any industrialprocess.” 113 This twist would operate in Lucasfilm’s favour ifits helmets/uniforms were, yet again, “sculpture” within the meaningof the 1988 Act. And so his legal team argued.How did the UK Supreme Court determine whether the helmet wasa “sculpture” within the meaning UK copyright legislation? It firstconsidered previous relevant judgments of courts in England and theBritish Commonwealth that had determined the legal meaning of“sculpture”. A central issue that emerged from this review was “the relativesignificance of the functional and the artistic”—in other words,whether or not a work was intended by the artist to be a utilitarian object(as was contended by US Customs in the Brancusi 114 trial). Referencewas made to a landmark decision by New Zealand’s Court of Appealin 1985 115 , which construed provisions of the Copyright Act 1962 of112. The Copyright (Industrial Process and Excluded Articles) (No 2) Order 1989(SI 1989/1070).113. Similar special provisions in relation to industrially produced and marketedthree-dimensional artefacts operate in copyright laws in many other territorial jurisdictions,and are intended by legislators to remove such designs from the lengthy and extensiveprotection given to the “fine arts.” Although copyright protection is limitedand/or removed from such artefacts, they are usually protected—though for a farshorter period—under national and international design registration laws.114. Brancusi, 54 Treas. Dec. Cust. 428 (Cust. Ct. 1928).115. Wham-O Manufacturing Co v Lincoln Industries Ltd [1985] RPC 127, [1984]1 NZLR 641.
WHAT IS ART? 139New Zealand that were similar to those of UK’s 1988 Act. The courtdetermined that Frisbees were not sculptures, because “It seems to usinappropriate to regard utilitarian objects such as plastic flying discs,manufactured as toys, by an injection moulding process, as items ofsculpture for the purposes of [New Zealand’s] Copyright Act.”A similar case was tried in England in 1995 116 to decide whetherscalloped shapes of die-cast moulds of heating plates for sandwichtoasters were in fact casts or moulds for “sculpture”. The trial judgedetermined that moulds were “sculpture” within the meaning of the1988 Act, but the Court of Appeal and the UK Supreme Court inour Star Wars trials determined they were not; and in doing so drewupon the Concise Oxford Dictionary’s definition of “sculpture”: “Artof forming representations of objects etc or abstract designs in theround or in relief by chiselling stone, carving wood, modelling clay,casting metal, or similar processes; a work of sculpture.” These courtsespecially stressed the significance of the first word, “Art”, in the dictionarydefinition. Moreover, the UK Supreme went further, determiningthat “No ordinary citizen—indeed no ordinary lawyer—would regarda sandwich toaster or any part of it as a work of sculpture—evenif it did produce ‘scalloped’ sandwiches. So why should a copyrightlawyer take a different view? A total or almost total emphasis onthe manner of creation . . . produces a result which offends commonsense and in our view is wrong. There must be some element of artisticexpression however unsuccessful.”A more recent English case came close, in the UK Supreme Court’sjudgment, to being “the only suggested definition or near-definitionthat has not attracted adverse comment from any quarter” 117 . It concerneda claim to artistic copyright in moulds used for making doublebarrelledhypodermic-type syringes, which claim the court rejected;and observed “The law has been bedevilled by attempts to widenout the field covered by the Copyright Acts. It is not possible to saywith precision what is and what is not sculpture, but I think MrMeade was close to the heart of the issue. He suggested that a sculptureis a three-dimensional work made by an artist’s hand. It appears tome that there is no reason why the word ‘sculpture’ in the [UK’s] 1988Act should be extended far beyond the meaning which that word has toordinary members of the public.” 118116. Breville Europe Plc v Thorn EMI Domestic Appliances Ltd [1995] FSR 77.117. “Any quarter” presumably means any advocate representing any party beforethe UK Supreme Court.118. Metix (UK) Ltd v G H Maughan (Plastics) Ltd [1997] FSR 718.
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