Stormtroopers and the Supreme Court

The United Kingdom’s Supreme Court recently rendered its decision in the first Intellectual Property case heard since it opened for business in October 2009.  The case, Lucasfilm v Ainsworth, concerned infringement of copyright subsisting in Stormtrooper helmets, which had in the past been produced by Andrew Ainsworth for the Star Wars films.

Under ss.51 and 52 of the Copyright Designs and Patents Act 1988: copyright in a design document is not infringed by making articles to that design provided that they are not themselves artistic works (51); and, where a design is exploited through the (licensed) manufacturing of articles derived from it, a period of 25 years from the first exploitation this is no longer an infringement (52). However, if the helmets themselves were sculptures, artistic works, then any copying of them might be classed as infringement even 30 years after Star Wars’ release.

On this crucial point an analogy was drawn with the use of prop military helmets in film portrayals of historic wars, the difference in the instant case being that the war was entirely fictional. However, despite the imaginary nature of the Stormtrooper characters, The Court explained that the work of art created by the appellants was the Star Wars film, and the helmets were ‘utilitarian in the sense that [they were elements] in the process of production of the film’ rather than artistic works in their own right.

Some commentators observe that the defences mentioned above set the UK apart from other jurisdictions, and allow for less substantial protection of creative works created in the course of producing a film. An important distinction here is between the typical duration of copyright protection, lasting for 70 years from the death of the author, and the much shorter period where derivative works are commercially exploited – 25 years following their being marketed.

Aside from the characterisation of Stormtrooper helmets as utilitarian, another interesting finding emerged from the decision – that claims for infringement of foreign copyright are justiciable in UK courts. Although Ainsworth succeeded in his defence against infringement of UK copyright, the Supreme Court held that the UK are entitled to take jurisdiction over a UK defendant in a claim for infringement of foreign copyright, and the eventual fallout of the case on this point remains to be seen.