Panoramic Freedom or Tyranny?

To emphasise how boring life would be without images from our built environment, this blog posting contains no pictures of buildings.

Until recently few people would have understood the expression Freedom of Panorama. Something to do with the iconic BBC TV current affairs programme maybe? But this has all changed due to the ongoing debate (for instance here, here and here) within the EU about copyright reform. At the moment the opponents of Freedom of Panorama are in the ascendant. Freedom of Panorama is of course about whether a photographer, videographer or artist may freely record and then exploit images of sculptures or buildings which are visible in public places, without seeking permission. In one sense this issue highlights the wider problem of harmonising copyright law across the EU. One look at the map below shows graphically where the 'fault' lines lie.

Map by King of Hearts and others, licensed CC BY-SA.

(obviously not all the countries shown are members of the EU) 

Countries shown in red forbid any such representations without permission, whereas those shown in dark green fully embrace the Freedom of Panorama policy. The lighter green countries only extend the exemption to buildings, not sculptures or similar works. Those in yellow permit only the recording of such works in public places for non-commercial use. It is perhaps too simplistic to say that these divisions are roughly aligned to the division between a more utilitarian view of copyright as a property right, and the droit d'auteur where the spirit of the author is exalted, but that certainly goes some way to explaining the fundamentally opposing positions taken over Freedom of Panorama.

The debate also highlights the two different senses of 'public domain'. In the wider context many people think of the public domain as that to which the public has access, such as the internet, as well as physical public spaces. On the other hand copyright enthusiasts use the words in a much more specific sense, namely the definition of the state of a work which is no longer subject to legal copyright protection. A building thus represents the paradox of standing in the public domain but not being in the public domain.

This raises the question: why should a building be subject to copyright in the first place? Without doubt architects are usually skilled artists and designers, and it is clearly fair and reasonable that their drawings should be protected in the same way as other artistic works. But why shouldn't the element of expression of their ideas (and thus copyright) be limited just to the drawings alone? It is undoubtedly true that many buildings are beautiful objects in their own right, but so are some cars or clothes or culinary dishes, but we don't feel the need to protect these things through copyright.

Unlike other forms of the traditional copyright works (literary, dramatic, musical and artistic), and despite a passing mention in Article 5(3)(h) covering exceptions to the reproduction right, a building cannot be subject to the majority of the specific provisions of the InfoSoc Directive (2001/29/EC) such as the communication right, the making available right or the distribution right. So that immediately makes a building a special case, outside the general direction of travel of copyright reform which is largely concerned with ensuring that copyright law reflects current and emerging technological changes. Furthermore because a building per se cannot be published, distributed or translated, it is effectively a continuous public performance or broadcast of the architect's creativity, open to everyone at all times. There is no need for a decision about whether a new public is being communicated to, as per Svensson. And even if the argument for according copyright to a building is persuasive, should this really extend to preventing the making of visual copies of it? After all, such images in no way affect the economic or moral rights of the architect any more than the building itself does. A photograph of a building does not compete with either the building itself or with the architect's drawings, because it does not do serve the same purpose. Such images will, in the main, only serve to enhance the reputation and renown of the architect. Perhaps if copyright in a building was similar to design right, in that what was restricted was the creation of an actual real three dimensional full-scale copy of the building, that would make sense, since the architect might be expected to earn an additional fee for any second edifice. One also has to consider how buildings come about. Architects are usually commissioned to do the job; unlike artists or sculptors, their creativity is only allowed to see the light of day because of the patronage of developers. To use the American terminology, their work is for hire. The end product of their job is not a work of artistic craftsmanship, as it is not made by their own skilled hands, and the underlying purpose of a building is utilitarian. But perhaps most significantly, the design of a modern iconic building, such as the Shard in London or the Burj Al Arab in Dubai, is not the work of one person, but huge teams of engineers, architects and other specialists. While the outline concept may originate from the mind of a single individual, the execution is way beyond the capability of any one person. This strengthens my view that allowing copyright in a finished building is absurd because it stretches the idea of 'author' beyond rationality.

And there is the entirely separate, practical argument that as far as  non-commercial photography etc is concerned, copyright in the physical building is virtually unenforceable due to today's ubiquity of cameras and smart phones. While the average person might think twice about downloading a pirated piece of music, it is unrealistic to believe they will ever see the moral case for not taking a selfie with the London Olympic Stadium or the Louvre in the background, without first seeking permission from the architect.

Many prominent architects are also particularly proficient at self-publicity and so one has to wonder exactly who is lobbying the European Parliament and Commission to ensure that Freedom of Panorama is excluded from any future EU law. Although if in doubt we can usually blame the French.  Or possibly French architects.

As Ben has previously reported, the next milestone along the road to EU copyright reform comes on 9 July when the plenary session of the European Parliament debates the subject.  Perhaps at that point the 'greens' (as shown on the map above) may manage to sway the argument back the other way.

For Eleonora's take on the subject, see this IPKat posting.

Q: when is a helmet not a sculpture? A: when it's not an elephant either

British judges' ability to know
one when they see it is of little
assistance to them when faced
with a charging litigant ...

The United Kingdom Supreme Court gave its ruling this morning in the "Star Wars helmet" copyright infringement case of Lucasfilm Limited and others (Appellants) v Ainsworth and another (Respondents) [2011] UKSC 39.  The decision, which has already attracted substantial media attention (see eg the BBC here), affirms that the Star Wars Stormtrooper helmet is not a "sculpture" under the Copyright, Designs and Patents Act 1988 but that Lucasfilms may bring proceedings in the United Kingdom to sue for infringement of US copyright in the United States. According to the Supreme Court's Press Summary:

"BACKGROUND TO THE APPEAL 

The appeal raises two distinct legal issues:

(1) The definition of “sculpture” in the Copyright, Designs and Patents Act 1988, and, in particular, 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 in a claim against persons domiciled in England for infringement of copyright committed outside the European Union in breach of the copyright law of that country?

This appeal is concerned with intellectual property rights in various artefacts made for use in the first Star Wars film, “Star Wars Episode IV – A New Hope”. The most important was the Imperial Stormtrooper helmet. It has been treated as decisive for the outcome of the case. ... The film’s story-line and characters were conceived by George Lucas. Between 1974 and 1976 his concept of the Imperial Stormtroopers as threatening characters in “fascist white armoured suits” was given visual expression in drawings and paintings by an artist, Mr Ralph McQuarrie, and eventually three-dimensional form by Mr Andrew Ainsworth. He produced several prototype vacuum-moulded helmets. Once Mr Lucas had approved the final version, Mr Ainsworth made 50 helmets for use in the film. 

The Appellants (here referred to collectively as Lucasfilm) own copyrights in the artistic works created for the Star Wars films. They have built up a successful licensing business, including licensing models of Imperial Stormtroopers. In 2004 Mr Ainsworth used his original tools to make versions of the Imperial Stormstrooper helmet and armour for sale to the public. ... He sold between $8,000 and $30,000 of the goods in the United States. Lucasfilm obtained judgment against him in the United States. It also commenced proceedings in the English High Court, including claims for infringement of English copyright and claims under US copyright law. 

By the time of the Supreme Court hearing, Lucasfilm claimed only that the helmets qualified for
copyright protection under English law as “sculptures” and not as “works of artistic craftsmanship” [realistically, "works of artistic craftsmanship" was never a runner given the body of existing case law on the subject, including Hensher v Restawile [1976] AC 64 and Merlet v Mothercare [1986] RPC 115]. 

In terms of section 4 of the Copyright Designs and Patents Act 1988, copyright subsists in ... original “artistic works”, which includes a “sculpture”, irrespective of artistic quality. Whether a helmet was a “sculpture” is significant for two reasons. If it is, any copying of the helmets which Mr Ainsworth had originally produced would infringe Lucasfilm’s copyright. It is also relevant for the defences which are available. To produce a helmet by working from a drawing of it infringes copyright in the drawing. However, it is not an infringement of any copyright in a design document which records a design for anything other than an artistic work to make an article to the design or to copy an article made to the design: section 51 1988 Act. If the helmet did not qualify as sculpture, and was therefore not an artistic work, Mr Ainsworth had a defence to an English copyright action based on infringement of Mr McQuarrie’s graphics.

The High Court dismissed the claims for infringement of English copyright: the helmet was not a
work of sculpture and therefore Mr Ainsworth had a defence under section 51. It held, however, that the United States’ copyright claims were justiciable and that US copyright had been infringed. The Court of Appeal allowed Mr Ainsworth’s appeal. It agreed that the helmet was not a work of sculpture but held that the US copyright claims were not justiciable. Lucasfilm appealed to the Supreme Court.

JUDGMENT 

The Supreme Court unanimously allows the appeal. It holds that the helmets were not sculptures but that the US copyright claims were justiciable in English proceedings. Lord Walker and Lord Collins [both of whom have some IP experience before their elevation to the Supreme Court] give a joint opinion, with which the other members of the Court agree. 

REASONS FOR THE JUDGMENT 

Sculpture issue 

The court reviews the legislative history of the current statutory provisions and previous authorities as to the meaning of “sculpture”: [14] – [35]. In the High Court, the judge had formulated various “guidelines” as to the meaning of sculpture. For example, some regard must be had to the normal use of the word “sculpture”. The concept can apply to things going beyond what one would normally expect to be art, but it is inappropriate to stray too far from what would normally be regarded as sculpture. Not every three dimensional representation of a concept qualifies: [36] – [37]. Lucasfilm contended that the helmet was sculpture as it had no practical function at all. Its purpose was wholly artistic, to make a visual impression on the filmgoer. That was not, however, how the trial judge and the Court of Appeal had viewed matters. Mann J found the helmets to be a mixture of costume and prop and that their primary function was utilitarian, namely to express an idea as part of character portrayal in the film. He held that this lacked the necessary quality of artistic creation required of a sculpture. This type of judgmental conclusion was one with which appellate courts should be slow to interfere, as Lord Hoffmann observed in Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1
WLR 2416: [40] – [45] [The court in that case seemed more concerned with the Court of Appeal's increasing tendency to substitute its own findings of fact and impression for those of the trial judge -- but the question still remains as to whether the trial judge should need to form an opinion as to whether the primary function of something which may or may not be a sculpture is utilitarian]. The judge did not err in law or reach an obviously untenable conclusion: [46]. 

It would not accord with the normal use of language to apply the term “sculpture” to, for example, a 20th century military helmet used in the making of a film, however great its contribution to the artistic effect of the finished film. The argument for applying the term to an Imperial Stormtrooper helmet was stronger, because of the imagination that went into the concept of the Stormtroopers. But it remained the Star Wars film itself that was the work of art. The helmet was utilitarian in the sense that it was an element in the process of production of the film: [44]. The Court noted that the law did not apply an “elephant test” [ie it might be difficult to define but you know one when you see one], but instead a multi-factoral approach: [47]. 

Justiciability of foreign copyright claim 

The Court of Appeal had held that the common law rule in British South Africa Co v Companhia de Moçambique [1893] AC 602 that an English court had no jurisdiction to entertain an action for the determination of title to, or the right of possession of, foreign land, or the recovery of damages for trespass to such land, was an example of a general principle which applied to claims for infringement of foreign intellectual property rights. The Supreme Court concludes that, provided there is a basis for in personam jurisdiction over the defendant, an English court does have jurisdiction to try a claim for infringement of copyright of the kind involved in the present action: [105]".

Appeal of Star Wars helmets

Three judges yesterday told the creators of Star Wars that their Stormtroopers simply didn’t have the X factor (judgment here).

Andrew Ainsworth, who made the helmets and uniforms for the 1977 film Star Wars IV – A New Hope, subsequently set up a business selling replicas. In 2006 a US court granted Lucasfilm an injunction against Ainsworth and $20m damages. In the Chancery Division it was held last year that:

1) The US judgment could not be enforced in England.
2) Although the uniforms were based on paintings and drawings by Ralph McQuarrie (example shown here) in which Lucasfilm owned copyright, the replicas did not infringe that copyright in UK law because they were not ‘artistic works’. Under s. 51 CDPA ‘it is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.’
3) Even if the uniforms were copyright works, the copyright would have been impliedly assigned to Lucasfilm.
4) However, the US copyright claim was justiciable in England.

The Court of Appeal agreed except on the last point, with the effect that Lucasfilm is left with no cause of action against Ainsworth in England.

Why didn’t the court think that the helmet is an artistic work, a ‘sculpture’? It said it was impossible to define sculpture but it must at least be ‘intended to be a work of art’, to have ‘visual appeal’ as part of its purpose. It affirmed that the helmets were ‘no different from and serve the same purpose as any real helmet or armour used in a film’, they were ‘utilitarian and lacking in artistic purpose’. Really? The helmets and uniforms are clearly designed to produce an imaginative and emotional response in the viewer – something they do very well.

No viewers’ votes in this contest but an appeal on appeal may appeal...?