Wednesday, August 3, 2011

Copyright of Art Objects 2 – Copyright part 8

In a comment to my blog article of February 17, 2011 I mentioned a case before the British Supreme Court of George Lucas v. Andrew Ainsworth. The case was argued in

March 2011 and the judgment was given on July 27, 2011. Ainsworth was the designer of the Storm Trooper costumes in the 1977 movie, Star Wars. Ainsworth was selling (fn 1)replicas of the costumes made from the same molds (fn 2) and designs as the ones in the film. Lucas claimed that Luscafilms owned a copyright on the costumes. Ainsworth claimed the costumes were clothing and not protected by copyright. My February 17 article dealt with the copyright of clothing. Objects that have a utility purpose such as clothes, shoes, and furniture can not be protected with copyright. The article has references for more information.

On July 27 the British Supreme Court made their ruling public in a press summary ( . Both sides feel they have won something and the Court set some precedents for the enforcement of copyright and jurisdiction of the British courts. The case is discussed in the Guardian on July 27, 2011. The Supreme Court stated that the costumes are not art. If the costumes were protected as a design, the 25(fn3) year duration of design protection has long passed. The Court rules that Ainsworth may continue to sell his costumes everywhere but the United States.

The Court dealt with two legal issues that set precedent in the British legal system and may have implications in American law.

(1) The definition of “sculpture” and the correct approach to three-dimensional objects that have both an artistic purpose and a utilitarian function;

(2) Whether an English court may exercise jurisdiction for infringement of copyright committed outside the European Union in breach of the copyright law of that country?

If you create or purchase a three-dimensional object and place it in your home or business, there is no doubt it is a protected sculpture because it has no utilitarian function. The way you display the object would make it perfectly clear that the object is art and without any practical use. If you wear it, it can not be copyright protected.

Lucasfilm argued that the helmet was an important part of the character. The Court said the same argument could be used for a 20th century military helmet used in a film. They used the example of the film depicting a war of the past (paragraph 43) with soldiers wearing helmets made of plastic, but painted to look like authentic steel.

The Court also claimed jurisdiction over the infringement of a foreign copyrights. While this does not obligate U.S. courts to do the same, it does show a precedent that may be used in other jurisdictions. The case was first presented in California, but the U.S. judgment was unenforceable in England.

The Court’s decision was based on several other cases that defined a sculpture. For example a 1962 case in New Zealand concerning Wham-O’s Frisbees. The Court of Appeal of New Zealand ruled that flying disks were utilitarian and not sculpture for the purposes of the Copyright Act. The wooden models of the discs were sculpture and protected. (Full ruling:

The questions of jurisdiction were based on cases in the U.S. and other counties. This opens the doors to suits in the country where the defendant is domiciled rather than the home country of the plaintiff. This may help protect copyright holders in foreign countries.

These legal points are interesting, but far removed from my primary interest of copyrights as they relate to print, intellectual property and libraries. Sculptured objects are rarely collected in any great quantity by libraries. Library users general will not need to copy three-dimensional objects. However, the conflict of the British and American intellectual property rights reminds me that at one time American and British authors had no protection in the other’s country. It took The International Copyright Act of 1891 (also called the Chase Act) to afford foreign writers and publishers copyright protection in the United States. In today’s global economy the flow of words transcends borders so quickly that we need to protect our intellectual property on a global basis.

My next article will be on fair use or “fair dealing” in British law.


1. Andrew Ainsworth has a web site ( for selling the costumes from Star Wars. He has several helmets in addition to the Imperial Storm Troopers. It states that they products are not for sale in the United States.

2. Since he was British, he used “original moulds.”

3. The press summary has “15 years” which is a typo. According to the text of the Copyright Designs and Patents Act 1988 section 52 the duration is 25 years.

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