The Enterprise and Regulatory Reform Bill is set to amend Copyright Law in the UK.
Please note the explanatory notes:
“Repeals section 52 of the Copyright, Designs and Patents Act 1988 so as to provide full copyright protection for the period of the author’s life plus 70 years.
Creates a power to amend exceptions for copyright and rights in performances without affecting the existing criminal penalties regime.”
Under Section 52 of the CPDA, you can see that Section 52 of CDPA 1988 relates to designs for artistic works. It applies where an artistic work has been exploited by the copyright owner by making 50 or more copies by an industrial process and marketing those copies. In those circumstances, the designs lose their protection after 25 years and copies can then be made without infringing copyright. That section came into effect on 1 August 1989. In Lucasfilm the items were first marketed in the 1970s and, accordingly, the earlier Copyright Act 1956 applied, which imposed a shorter time period of 15 years.
Mann J and the Court of Appeal found that while McQuarrie’s paintings were artistic works, they were exploited by more than 50 copies made in the form of the stormtrooper toys (and also, potentially, by the 50 costumes made by Ainsworth at the behest of Lucas for production of the film). This established a defence for Ainsworth under s52 once the relevant time period expired.”
Francis Davey expands on this on his blog here:
What about clause 56?
I suspect someone has pointed out that the effect of s.52 is that a great many depictions of Mickey Mouse are almost certainly no longer protected by copyright, having been reproduced on an industrial scale for well over 25 years. If this provision is repealed, the transitional arrangements are going to be fun to draft.
In relation to Lucasfilm v Ainsworth, the defence was in the end redundant as Mann J held that Ralph McQuarrie’s paintings were design drawings within the meaning of s51 and so were not infringed by the making of items based on them (i.e. the Stormtrooper costumes at the heart of the case). However, the defence had been run as a fallback and there was discussion of exactly how many costumes had been made at the time.
The intersection of UK design and copyright law is a mess that has only got more confusing with time. The effect of s51, as interpreted in Lucasfilm, is that Imperial Stormtrooper armour is not protected by copyright, but Iron Man’s suit is. Why? Because the initial drawings for the Stormtroopers were done specifically as designs for a 3D article that was later deemed not to itself enjoy copyright protection, whilst Iron Man was drawn as a comic in its own right.