The IPKat is mildly amused by the coverage of the steps taken by the BBC against any anonymous online knitting affectionado (see the Telegraph's report). The lady in question created knitting patterns for creating replicas of popular Dr Who baddies, and posted them on the internet. The BBC responded by threatening copyright and trade mark infringement.
The IPKat reckons that this has all the makings of a good exam question. What is the copyright position of a person who creates a knitting pattern (presumably a literary work) from a television picture of a CGI character (an artistic work) or a costume (artistic work, or perhaps work of artistic craftsmanship)? And what about the trade mark position of someone who gives away knitting patterns, the results of which, when knitted, may end up on eBay? And that's not to mention passing off... One thing's for sure - in this country, the fact that it may or may not be transformative use won't help you. Merpel, however, can't understand why anyone will willingly spend time knitting models of characters which are meant to be made out of blobs of human fat.
The IPKat reckons that this has all the makings of a good exam question. What is the copyright position of a person who creates a knitting pattern (presumably a literary work) from a television picture of a CGI character (an artistic work) or a costume (artistic work, or perhaps work of artistic craftsmanship)? And what about the trade mark position of someone who gives away knitting patterns, the results of which, when knitted, may end up on eBay? And that's not to mention passing off... One thing's for sure - in this country, the fact that it may or may not be transformative use won't help you. Merpel, however, can't understand why anyone will willingly spend time knitting models of characters which are meant to be made out of blobs of human fat.
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The only characters made out of "blobs of human fact" are press officers at the European Commission
ReplyDeleteWhoops - point taken.
ReplyDeleteHaving failed in an action for blatently selling T-shirts with everyone´s favorite TV characters (BBC WorldWide Ltd v Pally Screen Printing [1998]), can the BBC really hope to be more lucky with knitting models for blobs of fat ? ;-)
ReplyDeleteAlthough it may be self-serving, the BBC report on this story seems much more balanced - less of the "evil IP holder threatens defenseless knitter" vibe that I get from the Telegraph.
ReplyDeletehttp://news.bbc.co.uk/1/hi/entertainment/7400268.stm
Andres Guadamuz has a brilliant piccie of a hand-knitted Dalek here: http://technollama.blogspot.com/2008/05/of-fan-art-mash-ups-and-licences.html
ReplyDeleteMy copy of section 10 TMA 1994 clearly says infringement can only take place " in the course of trade". Claiming free patterns posted on the Internet are 'in the course of trade' seems a non-starter.
ReplyDeleteSimon -- don't believe what you read in s.10 of the TMA. it's only a statute, after all. The ECJ has been known to take the view that an act that interferes with the ability of a trade mark to perform its "essential function" -- a term you won't find in the TMA -- must, by so doing, be "in the course of trade". People viewing a real Dr Who toy may assume that its source is connected to the supplier of patterns for knitted versions of the same. This in turn may confuse or mislead them at the point at which they wish to (re)order a real toy. Dr Who is great science fiction, but for real fiction you just can't beat European trade mark law ...
ReplyDeleteThanks for the plug on the Dalek piccie Jeremy!
ReplyDeleteAs a Dr Who fan, I have been looking at this in detail, and I have wondering whether the case for infringement is so straightforward as one may think. I take the point that copyright law protects works against all sorts of transformation, but does that go as far as protecting a transformation into the instructions to do something?
We should remember that the creation of an item from instructions (knitting patterns or recipes) is not infringement (Bridgid Folley v Elliot), so would not the opposite be true? Producing instructions from the item may not be infringement. Or am I missing something basic here?
The BBC report does indeed give more information on the position of both sides.
ReplyDeleteOn the trade mark issue, the funny thing here is that there does seem to be commercial use through sales of the knitted-up figures on eBay, but this doesn't seem to be by the lady who posted the patterns. Perhaps the BBC would do better (on legal grounds at least) to go after the sellers on eBay.
On the copyright issue, Andres, I get your point. One thing that occurred to me, on the conceptual level at least is that it's not a million miles from computer software. You start off with the 'code' (knitting pattern), but what people really care about is the look and feel of the end product (the human fat blob thingies).
producing instructions may not itself be infringement, but surely the production of the final item would count as indirectly copying the original - the people making and selling the 'blobs' would be infringing, surely? the lady providing the instructions may be a joint tortfeasor (although if she never intended the toys to be sold, maybe not) or secondary infringing (although instructing someone to produce an infringing article may be covered by s.24 CDPA - which refers to providing 'an article' specifically designed for making copies of the work - would a knitting pattern be an 'article' ?
ReplyDeleteon a separate point one may question whether the blobs in question are sufficiently original to attract copyright. Being, well, blobs...
Jeremy:
ReplyDelete"Simon -- don't believe what you read in s.10 of the TMA. it's only a statute, after all. The ECJ has been known to take the view that an act that interferes with the ability of a trade mark to perform its "essential function" -- a term you won't find in the TMA -- must, by so doing, be "in the course of trade..."
Thanks Jeremy, most enlightening. It's been a while since I've spoken with European lawyers, sometimes I forget how under the 'purposive' approach of Civilian law the actual words of the statute often cease to mean anything concrete.