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Movies and TV shows - copyrights and unofficial merchandise

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retrocausality
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PostPosted: Mon Mar 04, 2013 2:31 pm    Post subject: Movies and TV shows - copyrights and unofficial merchandise Reply with quote

Hi, first time poster but you may well be about to hear from me regularly. Smile

I work for a fairly new t-shirt printing company, that up until recently was primarily printing designs "inspired by" movies and TV shows.

Although I have no prior education in IP Law, I've read a few books and a lot of online articles about copyright and trademark law, which led to me being put in charge of auditing our catalogue in an attempt to be totally "legit". (We're not a big company, we can't afford to employ a qualified IP Law specialist)

The thing is, the more I read about it, the more confusing it all seems. Just when I think I'm right to be conservative about which products to allow, I read something like the Unofficial ABBA Clothing case, 'Elvisly Yours' Perfume case or the Spice Girls vs Panini Stickers case, and it makes me think that a lot of the designs I've recommended be taken out of our catalogue were actually perfectly fine.

As far as I understand it, copyright law protects the execution of an idea, not the idea itself, but how far does this extend?

Take the famous comic-book superhero "The Amazing Spider-Man" as an example.

Is the "idea" simply "a man that gets bitten by a spider and gets special powers", or is it "the above, who wears a red and blue skin-tight suit and can fire webs out his wrists", or "the latter, who gets called 'webslinger' by his enemies, has a slightly athletic but quite slim build, is called Peter Parker when he is out-of-character, has short dark hair, is in love with his neighbour..."

At what point does "idea" end and "execution" begin?

In terms of the t-shirt company, if we made a t-shirt called "Webslinger" of a completely original picture drawn by one of our artists, of a slim-to-athletic man wearing a red and blue skin-tight costume with a spider motif, firing webs out of his wrists as he swings from building to building... are we infringing copyright or creating our own execution of the original idea?

The Mirage Studios vs Counter Feat Clothing "ninja turtles" case would suggest that it'd be an infringement, but then the Teletubbies case would suggest otherwise.

--

On a related note, in the 1979 movie Alien, the action takes place on a space ship, the USCSS Nostromo. Would it be an infringement to make "USCSS Nostromo Flight Crew" t-shirts that didn't mention the movie at all?

On one hand I've been recommending that the company gets rid of every single design that is in any way a reference to a movie, tv show or computer game, but on the other hand, if there's scope within the law to make unofficial merchandise then I'd like to understand it properly so that the company isn't being restricted in its market by my personal lack of knowledge.

Thanks massively in advance, I realise this is a huge first post.

All the best,

Phil
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typonaut
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PostPosted: Tue Mar 05, 2013 11:07 am    Post subject: Re: Movies and TV shows - copyrights and unofficial merchand Reply with quote

retrocausality wrote:
Just when I think I'm right to be conservative...


Being conservative, in this matter, is probably a good idea.

retrocausality wrote:
As far as I understand it, copyright law protects the execution of an idea, not the idea itself, but how far does this extend?


Don't get to tied up in that kind of dogmatic idea, it's often true, but there are cases where you'll find that the concept of execution gets stretched. A well known example of that is Designer's Guild v Russell Williams - is the concept of cloth patterns based on impressionist paintings an idea or execution. On this judgement seeing someone else's idea and executing a similar idea based on the core concept (impressionist paintings) is an infringement.

Also see the case of the red London bus: Temple Island Collections v New English Teas. Here the court finds that the idea of a colourised red London bus on a black and white background featuring the Houses of Parliament is protected, even though there are plenty of other examples of this, if it is your intention to copy that idea.

retrocausality wrote:
Take the famous comic-book superhero "The Amazing Spider-Man" as an example.

Is the "idea" simply "a man that gets bitten by a spider and gets special powers", or is it "the above, who wears a red and blue skin-tight suit and can fire webs out his wrists", or "the latter, who gets called 'webslinger' by his enemies, has a slightly athletic but quite slim build, is called Peter Parker when he is out-of-character, has short dark hair, is in love with his neighbour..."

At what point does "idea" end and "execution" begin?


If it looks like Spiderman, then it is probably an infringement. If it brings to someone's mind the Marvel character Spiderman, then it is probably an infringement.

If it doesn't do either of those then it probably is not. But it is also probably not a t-shirt that you are going to sell very many copies of.



Quote:
In terms of the t-shirt company, if we made a t-shirt called "Webslinger" of a completely original picture drawn by one of our artists, of a slim-to-athletic man wearing a red and blue skin-tight costume with a spider motif, firing webs out of his wrists as he swings from building to building... are we infringing copyright or creating our own execution of the original idea?


See above. If it is your intention to gain value from forming a relationship with someone else's artwork, then you could well be found infringing.

Quote:
On a related note, in the 1979 movie Alien, the action takes place on a space ship, the USCSS Nostromo. Would it be an infringement to make "USCSS Nostromo Flight Crew" t-shirts that didn't mention the movie at all?


The text you want to use is probably de minimis - below the requirement to attract copyright protection in the first place. So there probably is not a copyright infringement. There is the possibility of a passing off suit against you, if the film company believes you are trading on its goodwill/confusing the public as to the origins of the goods.

Quote:
but on the other hand, if there's scope within the law to make unofficial merchandise then I'd like to understand it properly so that the company isn't being restricted in its market by my personal lack of knowledge.


There probably isn't much one can do about getting around lack of knowledge, since the only person competent to make this decision is a judge. The best legal minds in the country could be advising you one way or the other, but they could be wrong (if you think about it, every case has a losing party, and they didn't go to court, or even appeal or Supreme Court, thinking they were wrong and their advisors telling them they would lose - well, mostly anyway).

There also isn't really much scope for "unofficial merchandise", because to form that link with the "official" you're going to have to be fairly close in the mind of the consumer. This brings you into potential conflict with copyright and passing off. At best, you will start getting legal letters asking you to sop, at worst it could end up costing a lost of money.

That's a commercial decision one has to take - risk, or no risk?

On unofficial merchandise, you may want to look at Arsenal Football Club plc v Matthew Reed, where there is evidence given as to the nature of confusion in the mind of the public, and the court finds that disclaimers that merchandise is not official will not protect against claims of infringement.
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retrocausality
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PostPosted: Tue Mar 05, 2013 11:29 am    Post subject: Reply with quote

Hi, and thanks very much for the reply.

I've been reading about that Arsenal v Reed case this morning, funnily enough.

If I understand it correctly, the original judge found in favour of the unofficial merchandiser, then the European court found in favour of Arsenal, then the original judge dismissed the European courts' finding and found in favour of Reed once more, and then Arsenal appealed and a new judge found in favour of Arsenal once more. Is that right?

A case that leads me believe that we can / can't / can / can't make unofficial merchandise, depending on who happens to be the judge that day.

Am I right in thinking that the reason the European court and appeals court found in favour of Arsenal was because of trademark dilution - once the products have left the stalls there's no way a person on the street would know whether it was a genuine official product or a fake, and so the brand suffers because of substandard products bearing the trademark?

So, if we could somehow make sure that there would be no way that anybody could ever mistake our merchandise for official merchandise, then we'd be safe?
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retrocausality
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PostPosted: Tue Mar 05, 2013 2:56 pm    Post subject: Reply with quote

Going back to the Alien movie example, "Nostromo" was only ever registered by 20th Century Fox for the category of goods and services ""Toys And Action Figures", never for clothing...

h t t p : / / tess2 . uspto . gov/bin/showfield?f=doc&state=4007:q812wm.2.9

...and they cancelled it in 1988.

As far as I can see, the only tshirts available for sale online that contain the word "Nostromo" are unofficial non-licenced tshirts along the same lines of our own designs that I took down.

For a case of passing off, don't the claimants need to have built up "good will" in the trademark?

If Fox haven't actually been trading using the mark "Nostromo" in any category of goods for the last 25 years, then surely a passing off case couldn't succeed?
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PostPosted: Tue Mar 05, 2013 6:26 pm    Post subject: Reply with quote

Hi Phil,
I was going to post earlier, but Typo's response pretty much covered the original topic. I was going to expand on the idea/expression dichotomy (and I still can if you would like me to).
However your third posting indicates you may need clarification on the trade mark issue. Unlike copyright, trade marks are territorial and so the fact that a trade mark has been registered in the US has no effect if you are only trading here in the UK. You are however correct about the effect of the class(es) in which a trade mark is or isn't registered on your ability to use a similar mark in a different class where there is no commonality of the goods or services involved. In that case the only grounds for a claim of infringement would be if there has been reputational damage to the original trade mark owner.
The second point to note is that for a claim of passing-off, there doesn't need to be a trade mark per se, just the existence of goodwill in the product or service within the territory where the claim is brought. So a brand which was famous in the US but unknown here in the UK would have difficulty in establishing that goodwill existed among the relevant buying public here.
There are two time related grounds why a trade mark (in the UK) may no longer be valid. The first is because the registration has expired (registration lasts for 10 years*), and the second is where the registrant has not used the mark for 5 years or more in the classes for which it was registered (s46(1)(b) of the Trade Marks Act 1994). Furthermore if another similar mark (whether registered or not) has been in use in the same market for a period of 5 years or more, without complaint from the registrant of the original mark, then the registrant is deemed to have acquiesced and loses the right to oppose the use of the later mark, provided it is not applied for in bad faith.

*Afternote. I've just re-read that sentence and I want to dispel any potential misunderstanding. A registration can be renewed as many times as the owner wishes; it is only if he fails to register that the protection lapses.
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PostPosted: Tue Mar 05, 2013 10:26 pm    Post subject: Reply with quote

retrocausality wrote:

A case that leads me believe that we can / can't / can / can't make unofficial merchandise, depending on who happens to be the judge that day.


I suppose it's a bit like a boxing match. You knock me down, I get back up. I knock you down, you get back up. You knock me down, I get up again. I knock you down, and you stay down.

The rationale and decisions in the various hearings are interesting, but the only one that really counts at the end of the day is the final decision in the Court of Appeal. ie disclaimers are ineffective.

retrocausality wrote:
Am I right in thinking that the reason the European court and appeals court found in favour of Arsenal was because of trademark dilution - once the products have left the stalls there's no way a person on the street would know whether it was a genuine official product or a fake, and so the brand suffers because of substandard products bearing the trademark?

So, if we could somehow make sure that there would be no way that anybody could ever mistake our merchandise for official merchandise, then we'd be safe?


In that example, if Reed could have ensured that there was no way that his goods could have been confused with official goods, then that sort of claim would not have succeeded. That's not to say that the claim could not have been formed in another way.

Also, I think that it's pretty much impossible to do what you propose: trade on the value of some brand, while simultaneously denying that link, but still maintain the link so that you gain some benefit from it... doesn't make any sense.

You should also think about the way that the confusion could arise, it's not only from the perspective of the buyer, or recipient of those goods, but also from the perspective of someone seeing them in the street, ie unofficial items being worn by people in the street confusing other members of the public.

So, if you are thinking of putting a disclaimer label on the goods (that was not removable), then that would be ineffective, unless it was visible to anyone that might see the garment, at any time. And that probably means that the disclaimer is at least as obvious as any "unofficial" element on the clothing.

For example, if you were doing unofficial Arsenal team shirts, you'd somehow have to make sure that anyone, at any distance, who could identify the shirt as having any connection to Arsenal, could also identify it as not having originated as official merchandise.
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PostPosted: Tue Mar 05, 2013 10:55 pm    Post subject: Reply with quote

retrocausality wrote:
If Fox haven't actually been trading using the mark "Nostromo" in any category of goods for the last 25 years, then surely a passing off case couldn't succeed?


The first question you need to ask yourself is: do you want to be on the wrong end of a law suit from a big film company?

If you want to take that risk, then the next question is: if the law suit arrives, how will you defend the claim?

Here we are discussing a passing off claim. The essential parts of that are that you are misrepresenting your goods as originating somewhere else. Anyone likely to buy that shirt is unlikely to misunderstand what the origin of that phrase is: it comes from the original "Alien" film.

I think that it therefore stands to reason that in the minds of anyone that buys such a shirt, and anyone that sees and understands the meaning of such a shirt, a link is formed to the source: Alien.

The remaining question is whether the link to that film is something that would be successfully actionable in a passing off suit. I can't answer that, as above, only a judge can. It seems remote, but I think the cases here are illustrating a tighter and tighter control developing over intellectual property - in the ways that judges are understanding it.

A little while ago I was talking to a barrister about various trademark and copyright issues, and he said something to the effect that if someone saw a Jimi Hendrix t-shirt there's no way that they would confuse the origin of that as coming from the "owners" of that brand. I misunderstood what he meant at that moment, and diverted the conversation. When I thought about it again later I believed that he wasn't correct in that assumption. That's because I think there is always a necessary link to the "source" in that type of merchandise, and there is a fair assumption that there may be official merchandise available in such cases.

The leap is then whether there could be a passing off or trademark case built around unofficial merchandise. Well, one barrister says no. Is it possible another barrister might say yes?
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PostPosted: Wed Mar 06, 2013 9:26 am    Post subject: Reply with quote

Wow, thanks for the replies, everyone. Your help is very much appreciated.

I've read all your replies but I'd like to go over them again when I'm slightly more awake. I just wanted to add a quick reply.

With regard to passing off, it is almost starting to make sense to me, except for the muddied waters in relation to the "teletubbies" case - BBC vs Pally Screen Printing, 1998... h t t p : / / w w w . ipo. gov. uk/ipcass/ipcass-legislation/ipcass-legislation-cdpact/ipcass-bbc.htm

"in connection with passing off it was arguable that members of the public would consider the t-shirts to be simply t-shirts bearing images of the Teletubbies without any regard to whether they were put out by the BBC or with its permission."

I don't understand why it was considered OK for Pally Screen Printing to make unofficial Teletubby tshirts. Unless of course the quality of those shirts was so poor that nobody would ever believe they were made by the beeb.
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retrocausality
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PostPosted: Wed Mar 06, 2013 12:10 pm    Post subject: Reply with quote

AndyJ wrote:
Hi Phil,
I was going to post earlier, but Typo's response pretty much covered the original topic. I was going to expand on the idea/expression dichotomy (and I still can if you would like me to).
However your third posting indicates you may need clarification on the trade mark issue. Unlike copyright, trade marks are territorial and so the fact that a trade mark has been registered in the US has no effect if you are only trading here in the UK. You are however correct about the effect of the class(es) in which a trade mark is or isn't registered on your ability to use a similar mark in a different class where there is no commonality of the goods or services involved. In that case the only grounds for a claim of infringement would be if there has been reputational damage to the original trade mark owner.
The second point to note is that for a claim of passing-off, there doesn't need to be a trade mark per se, just the existence of goodwill in the product or service within the territory where the claim is brought. So a brand which was famous in the US but unknown here in the UK would have difficulty in establishing that goodwill existed among the relevant buying public here.
There are two time related grounds why a trade mark (in the UK) may no longer be valid. The first is because the registration has expired (registration lasts for 10 years*), and the second is where the registrant has not used the mark for 5 years or more in the classes for which it was registered (u r l). Furthermore if another similar mark (whether registered or not) has been in use in the same market for a period of 5 years or more, without complaint from the registrant of the original mark, then the registrant is deemed to have acquiesced and loses the right to oppose the use of the later mark, provided it is not applied for in bad faith.

*Afternote. I've just re-read that sentence and I want to dispel any potential misunderstanding. A registration can be renewed as many times as the owner wishes; it is only if he fails to register that the protection lapses.


Hi, and thanks for the reply.

I'd very much like a clearer view of the idea-expression dichotomy if you wouldn't mind expanding on it for me.

The point has arisen again today with respect to a design on a tshirt worn by a character in a tv show. In the show "The Walking Dead", the main character's son wears a tshirt throughout the series that is essentially an animal's paw-print superimposed over an "atom symbol" (essentially a rounded 6-pointed star made up of 3 'atomic' orbits). Presumably it's a metaphor for the combined disciplines of science and nature.

Our own designer has come up with a design that is essentially the same "idea" - a paw print superimposed over an atom symbol - but when looking at it side-by-side with the original it's clear that it hasn't just been lifted directly - the pawprint is from a different animal and the atom symbol has a different orientation.

I'm now beginning to think that this is the same sort of shaky ground as the "Nostromo flight crew" tshirts.

Even if we could argue the expression/idea point successfully, it would still be passing off, in particular because the official merchandise page for the TV Show actually sell their own EXACT versions of the kid's shirt.

Saying that, the Lucasfilm v Ainsworth case comes to mind. Ainsworth won in the copyright case in the UK court, with the stormtrooper costumes considered to be "industrial props" rather than creative sculptures, but why didn't Lucasfilm submit a claim for passing off?

Surely anyone witnessing the Stormtrooper costume in the street would naturally assume it was genuine licensed Star Wars merchandise, with Lucas having plenty of goodwill in the Star Wars brand, and Ainsworth's trade surely affecting Lucasfilm's potential market for similar products?
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PostPosted: Wed Mar 06, 2013 12:50 pm    Post subject: Reply with quote

retrocausality wrote:
I don't understand why it was considered OK for Pally Screen Printing to make unofficial Teletubby tshirts. Unless of course the quality of those shirts was so poor that nobody would ever believe they were made by the beeb.


This is not a fully argued case, so I don't think it has any relevance (not clear to me why the IPO would be citing it). It is an application for summary judgement, which in this case means that the BBC has asked the court to decide the issue because the defendant has not filed a defence. In the full text of the decision it is stated that the defendant filed a defence on the morning of the hearing.

Mr Justice Laddie (as then was) says:

Quote:
This is an application under Order 14 and the rules which apply to such applications are well known. In particular, an Order 14 judgment will only be entered for a plaintiff in cases where there is no reasonable doubt that the plaintiff is entitled to judgment. Strong, even very strong, suspicions that the defendants will lose are not enough. The court will only deprive a defendant of an opportunity to defend himself at the trial if it is quite apparent that the cost and delay of a trial would be completely wasted, because it is clear that there is no defence.


So, it's really about whether the defendant get a trial, rather than whether they have won the case. There doesn't appear to be a report of a trial in this case. It notes that the third and fourth defendant had reached a "compromise" with the BBC (which I assume means they settled, out of court), and were no longer party to the suit. My further assumption is that the first and second defendant also reached an out of court settlement with the BBC, so no trial ever happened (because there is no record - but it could be unreported).

I've just had a quick look around, and found that this case is used in numerous IP text books - which I find completely amazing, because the only point it settles is that there is an arguable defence, not that that defence is valid. Did the authors read the case!?
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PostPosted: Wed Mar 06, 2013 1:00 pm    Post subject: Reply with quote

retrocausality wrote:
Our own designer has come up with a design that is essentially the same "idea" - a paw print superimposed over an atom symbol - but when looking at it side-by-side with the original it's clear that it hasn't just been lifted directly - the pawprint is from a different animal and the atom symbol has a different orientation.


See Temple Island Collections v New English Teas, which is referenced above. Ask yourself whether there is a separation of idea and expression in that case, and why the judge found against the defendant.

retrocausality wrote:
I'm now beginning to think that this is the same sort of shaky ground as the "Nostromo flight crew" tshirts.


That would be a passing off case, perhaps (no one is telling you that it is, or is not, we're just giving pointers), but the paw print/atom design appears more likely to fall foul of copyright.

retrocausality wrote:
Saying that, the Lucasfilm v Ainsworth case comes to mind. Ainsworth won in the copyright case in the UK court, with the stormtrooper costumes considered to be "industrial props" rather than creative sculptures, but why didn't Lucasfilm submit a claim for passing off?


Possibly because Ainsworth was claiming to be the copyright owner, and thus I think it would be impossible to make a passing off claim.
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PostPosted: Wed Mar 06, 2013 1:00 pm    Post subject: Reply with quote

typonaut wrote:
retrocausality wrote:
I don't understand why it was considered OK for Pally Screen Printing to make unofficial Teletubby tshirts. Unless of course the quality of those shirts was so poor that nobody would ever believe they were made by the beeb.


This is not a fully argued case, so I don't think it has any relevance (not clear to me why the IPO would be citing it). It is an application for summary judgement, which in this case means that the BBC has asked the court to decide the issue because the defendant has not filed a defence. In the full text of the decision it is stated that the defendant filed a defence on the morning of the hearing.

Mr Justice Laddie (as then was) says:

Quote:
This is an application under Order 14 and the rules which apply to such applications are well known. In particular, an Order 14 judgment will only be entered for a plaintiff in cases where there is no reasonable doubt that the plaintiff is entitled to judgment. Strong, even very strong, suspicions that the defendants will lose are not enough. The court will only deprive a defendant of an opportunity to defend himself at the trial if it is quite apparent that the cost and delay of a trial would be completely wasted, because it is clear that there is no defence.


So, it's really about whether the defendant get a trial, rather than whether they have won the case. There doesn't appear to be a report of a trial in this case. It notes that the third and fourth defendant had reached a "compromise" with the BBC (which I assume means they settled, out of court), and were no longer party to the suit. My further assumption is that the second and third defendant also reached an out of court settlement with the BBC.


Oh I see! That makes more sense! Thanks for that.
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PostPosted: Wed Mar 06, 2013 4:11 pm    Post subject: Reply with quote

Hi Phil,
As by now you know, this is a tricky subject and I fear it will not be possible to give a definitive answer or a set of rules which you can apply to all your designs. The reason for this is that the law develops over time. As you have discovered from your research, a decision in a case which appears to clarify a point of law can be reversed, either on appeal, or by a later case where the courts either develop new tests or interpret the law in a different way. There are numerous examples of case law appearing to contradict other case law decisions. The reason generally is that the facts in the two cases were different and required a different assessment by the court.
You asked me to expand a little on the ideas versus expression dichotomy. I won't cover the trade mark law or passing-off here as they both use different approaches to determine whether infringement has occurred or if an act amounts to passing-off.
So this is just about copyright. Or more specifically about the idea versus the expression. It is well established in all jurisdictions that an idea or a fact cannot be protected by copyright, and that until an idea has been fixed in permanent manner copyright does to come into play. So a speech made without a script or notes will ordinarily not be protected by copyright. But if a shorthand writer in the audience or a person with a video camera or tape recorder records the words spoken, then copyright springs into action. The speech may be on the economy, full of facts and figures, but the way in which the speaker expresses himself, by the choice of words or the eloquence of his delivery, or the metaphors he uses to illustrate his concepts are the essence of his speech which differentiate his speech on the subject from another speaker on substantially the same subject.
In practice of course the boundary between the two is rarely easy to delineate. It is worth noting that this is an area in which US law has gone much further we in Europe have done in blurring the distinction, but in order to keep this as short as possible I will only highlight the more glaring differences here. It is worth analysing what the courts in the UK and Europe consider to be the test for a work to be subject to copyright in the first place. The UK Act (CDPA 1988) speaks of 'original' works, and this used to be interpreted to mean the creative product originating from a human mind which does not copy some other work. But recent decisions (notably Infopaq) in the Court of Justice of the European Union have moved the jurisprudence on, such that a work which expresses something of the personality of the author is now the favoured test. This is slightly narrower than the previous test so that it tends to exclude something which has been unconsciously regurgitated or is so commonplace as to be banal, unless the new version exhibits significant additional and demonstrable creativity on the part of the later author. So how does this help define the boundary between the idea and the expression? Well the more 'original' content there is in a work, the more this will be 'expression'; to give an example, a novel in which the writer invents the plot, the characters and determines the pace of the writing, will contain a large proportion of expression even though the idea of, say, a love affair between two people, which is behind the novel is very commonplace. On the other hand a history of the Tudors will inevitably be based on historical facts and various source documents, and so is likely to have a much smaller component of expression which is unique to the author. Now in both cases, verbatim copying would infringe the copyright of the original author, but in the second case, a closer re-telling of the facts would be much more acceptable than would be the case with the novel.
The same holds true for films and TV programs. US jurisprudence specifically excludes some elements such as stock characters (for instance, the bad guy dressed in black or the blonde air-head) or scenes which are necessary to a story of that type (known as the scènes à faire doctrine). But on the other hand the US courts tend to provide far greater protection to those characters and characterisation which are distinct and well-formed. For example, very recently a court in California has ruled (pdf) that the Batmobile is a 'character' and protected by copyright. If you want to go more deeply into the US approach to protecting characters and plots, take a look at this paper which I recommended in another thread recently). I think it highly unlikely that a UK court would ever goes so far as to say Chitty Chitty Bang Bang was a character, and still less that it was worthy of copyright protection on its own. As a part of a book or film, it might be protected because it amounts to being the substantial part of story, but that is a different measurement. This leads on to the relationship between the expression and the test for substantiality. The UK courts tend to take a more overall view of the work when deciding such things, looking at how substantial is the part or element which is alleged to have been infringed. This is invariably done on a qualitative basis and not a quantitative one. So in the case of a film, this test would tend to focus on the main plot, the main characters, the more memorable cinematography and so on - the things which capture the essence of the film or TV programme. On that basis I would take the view that using the name of the USCSS Nostromo would not be a substantial part and so not infringe. But interestingly I also took the view, in another thread about tee shirts, that the half-buried Statue of Liberty which featured in the film Planet of the Apes was similarly insufficiently substantial, but Typonaut disagreed with me (which is not unusual). Which really goes to show how subjective some of these issues are.
Another example here might be the concept of a game show. The overall idea of say Who wants to be a Millionaire is not the asking of questions which if the contestant gets them right, they win more money, or the fact that at certain points the contestant has to decide whether quit while they are winning or go for the next level and possibly forfeit everything - both of those elements have been found in previous game shows, but the uniqueness of the concept lies in details such as the way in which the compère builds up the tension, the computer graphics, the audience in the round and so on. In other words the expression floats above the idea, such that other game shows (eg Play Your Cards Right) can use some of the underlying ideas, but express them in an entirely different way and so do not infringe the Millionaire format (which is now owned by the Sony Corporation).

Typonaut has mentioned Designer's Guild as an important decision which examined the idea / expression issue. The Red Bus case is also interesting, not because it is a precedent for the courts- it isn't - but because it represents the thinking of younger justices, such as His Honour Judge Colin Birss, who will no doubt be influential in many future IP decisions in the High Court, just as in his day Laddie J was influential, even though his decision in the Arsenal FC v Reed case was overturned by the Court of Appeal. Hugh Laddie went on to become a highly respected academic and co-author of one of the seminal works on copyright.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007


Last edited by AndyJ on Wed Mar 06, 2013 8:35 pm; edited 2 times in total
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retrocausality
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PostPosted: Wed Mar 06, 2013 4:41 pm    Post subject: Reply with quote

Wow, thanks for that, AndyJ. LOTS of info there!

There's definitely a few more cases I should read. The London bus one was very interesting.

As an aside, I have no idea on the process or potential punishments for infringements. What would be the order of events if a movie company decided that one of our tshirts was an infringement of copyright or trademark?

Would we get a polite letter asking us to remove the design, or would stage 1 be a court summons?

If the latter, would there be scope at any point to hold up our hands and say "sorry, we acknowledge your complaint and will remove the design from our catalogue", or would it be the case that if we'd made it that far then we could expect bankruptcy after being sued for more money than there is in our entire company?
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PostPosted: Wed Mar 06, 2013 5:31 pm    Post subject: Reply with quote

Oh, man, that Infopaq case is depressing... bang goes our new line in slogan tshirts.

Am I right in thinking that the de minimis thing doesn't apply if the quote in question expresses the personality of the original author of the quote?

I.E. we wouldn't be able to do a plain t-shirt with the words "I'll Be Back" on it?

People at work are really starting to hate me. Laughing I need to find an avenue of attack that increases our portfolio instead of reducing it soon or I'll get lynched by our designers.
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