Book Review: Intellectual Property and Popular Culture

From Star Wars’s wars over uniforms to Banksy’s latest loss of trade mark rights, pop culture gradually made its way into intellectual property doctrine. The University of Strasbourg did not wait on the side-lines of these developments, and organised, in 2018, a conference on ‘Pop Culture and Intellectual Property’. Following the success of the conference, a collection of contributions, edited by Prof. Yann Basire (University of Strasbourg), has now been published with IRPI under the title “Propriété intellectuelle et pop culture”. 

Structuring itself in a pop culturesque style, the book is divided into a prologue and three episodes, which are themselves grouped into 14 chapters, 11 of which are written in French and 3 in English. The ensuing contents contain contributions on various issues of IP and popular (also called “mass”) culture, which can either be consulted separately as self-standing pieces or read in one sitting, so as to obtain a more holistic view on the topic. 

The perspective offered by the authors is mainly that of European law, but interspersed are also contributions under US, Canadian and Australian law. Admirably for an edited volume, the overall analysis and the case-law consulted are complementary rather than overlapping. Even where the same cases are considered by different authors, each such chapter provides the reader with a new angle. 

The book opens with a Preface by Prof. Basire, who defends the right of lawyers to have fun (even when talking about points of law), setting the tone for the entire volume. The Preface is followed by a Prologue, which constitutes the two first chapters of the book. In Chapter 1, Matthieu Rémy starts by defining popular culture as that opposed to haute culture, and then offers an historic and cultural foray into the origins of pop culture. He is followed by Christine A. Corcos, who in Chapter 2, written in English, suggests three ways of looking at law and popular culture. Giving the example of the television series Star Trek, the author encourages law professors to use the universe of pop culture in class and to push the boundaries of legal and ethical thought. Thus, situations encountered in the works of pop culture may be used to discuss international law, contract law, military law, human rights law, and even artificial intelligence law and practice. 

Episode 1, “New Objects of Protection?”, includes the next three chapters. In Chapter 3, also written in English, PermaKat Eleonora Rosati looks into the protection of fictional characters under trade mark law. Using the Vigeland case as a guiding thread [also addressed by Eleonora here], she analyses which grounds of refusal may be applicable to a trade mark application for a fictional character, which scope of protection can be obtained and whether a trade mark right in itself would be sufficient for the authors.

Chapter 4, written by Amélie Favreau, Alex Lamarche, Smitha Kheria and Véronique Costa, is dedicated to street art. Writing in both French and English, the authors provide a comparative perspective of French and UK law as to whether pieces of street art are eligible for copyright protection, how their illegal character influences their eligibility for copyright, and how the rise of legal spaces for street art may influence the allocation of rights between the artists and the owners of such spaces. 

In Chapter 5, this Kat’s favourite, Yann Basire considers whether fictional languages, such as Klingon or the Black Speech of Morder, can be protected by copyright. It is true that, unlike natural languages, fictional ones are solely a product of one’s imagination, but whether they are protected by copyright is subject to debate. While there is no clear answer as to the copyrightability of a fictional language as such, Yann addresses the possible protection of the language’s elements, such as its grammar and vocabulary. 

Dessine-moi un chat 

Episode 2, “New Forms of Use?”, looks, as its name suggests, at new forms of use of protected works, brought by the popular culture to the intellectual property universe. In Chapter 6, Pierre-Dominique Cervetti discusses legal and contractual aspects of sequels, prequels, sidequels and spin-offs. 

Chapter 7, written by Nicolas Bronzo, is dedicated to a phenomenon common in the pop culture – that of fanfiction. Using the example of Kindle Worlds, Nicolas addresses the role and responsibilities of intermediary platforms, such as Amazon, when publishing fanfiction works. In Chapter 8, Julie Groffe considers whether e-sports (sport competitions using video games) are copyrightable. In the absence of applicable case-law, the author draws a parallel to live sporting events and the Premier League case [also analysed by IPKat here]. 

Illegal remakes, also called tip-offs or mockbusters, are the topic of Chapter 9, written by Pauline Léger. Among the aspects considered are the existence of moral rights even after copyright of the original work expires their registrability as a trademark, and the illegal character of the remake as an impediment to its copyrightability. 

Chapter 10, authored by Caroline Le Goffic, provides answers to questions posed by Internet memes, namely, to what extent are memes copyrightable; the extent of the parody exception applicable to them; and how will Art. 17 of the DSM Directive affect the diffusion of memes? In Chapter 11, Dariusz Piatek considers spoilers as a possible act of copyright infringement, comparing the approaches taken in French and US doctrine. 

The volume closes with Episode 3, “New Models?”, which spans the last three chapters. In Chapter 12, Stéphanie le Cam looks into what the author calls the “social dimension” behind popular culture. Taking the example of screenwriters in the US and France, the author analyses the respective copyright and labour law aspects of those who create the universes of popular culture. 

Sarah Dormont, in Chapter 13, considers whether artificial intelligence can be regarded as an author under French law and suggests a solution in the form of a sui generis right for those investing in AI. Chapter 14, authored by Franck Macrez, elaborates on the various aspects of electronic music (mix, remix, sampling) and intellectual property rights against the background of the Pelham case [also addressed by the IPKat here, here and here]. 

After reading this volume, only one question remains: will there be a movie? 

Publisher : IPRI
Published: 2020
Extent: 207 pages
ISBN 978-2-9569841-2-2