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Hand of God defeat’s The Empire’s copyright

In 2008, Star Wars creator George Lucas, through his production company Lucasfilm Ltd, brought an action before the High Court against a former employee of Lucasfilm. The former employee had been selling replica Star Wars characters and costumes. Lucasfilm claimed that the Imperial Stormtrooper figures’ helmets and armour were protected by their copyright. The Court went on to consider whether or not the Stormtrooper figures and articles could be protected by copyright.

The High Court considered that the Stormtrooper figures were toys that were intended for play and that they were intended to be used by children in a form of role-play. The figures were not classed as sculptures and were said to have no artistic essence.

The Court also considered whether the helmets and armour were works of artistic craftsmanship, but decided that they were not; their purpose was to give a particular impression in a film rather than to have any aesthetic appeal.

It therefore appears that the UK courts do not consider that toys attract copyright protection. The Court appears to consider that the defence under Section 51 of The Copyright Design and Patents Act 1988, which permits any copyright in a design document or model for anything other than an artistic work or typeface to be copied to that design, would apply here. This therefore means that the toys must be classed as sculptures or works of artistic craftsmanship in order to avail themselves of any copyright protection.

This decision may well play a crucial part in the development of a new matter. Recently a German pastor set up a website portraying the Easter story by using Playmobil figures to depict the various characters. As part of the depiction the pastor melted the hands of one figure to emulate the crucifixion and added breasts to another to show ‘Eve’. Playmobil have told the pastor to take down the website and dismantle the characters, accusing the pastor of deliberate and creative adaptation of the toys in breach of their copyright.

If this matter proceeds before the Courts it would be interesting to see whether these figures would be regarded as being artistic works or, if the decision of the High Court is followed, they are regarded simply as toys without artistic craftsmanship. It seems highly unlikely that George Lucas and his many colleagues at the time who worked on Star Wars and developed the characters and their costume design would consider that what they had created were not works of artistic craftsmanship. Indeed, it seems incredible that copyright protection is available for items such as bus timetables, whereas it is not available for action figures that have required a great deal of time and effort by the creator.

It seems probable that, given the commercial value of action figures derived from films and television series, there will be further litigation on this matter but at the moment the law favours the pastor. The value to companies of character merchandising and their desire to protect their works is likely to result in a number of matters proceeding beyond the High Court for determination.

It may not be long before legislation changes are lobbied for or at least matters progress to the Court of Appeal and House of Lords to seek to secure protection for such creative works.

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