Stormtroopers, Copyright, and Cultural Ownership

You may or may not have heard about the extensive saga that is George Lucas’ dispute with one of the costumers/prop makers from the original Star Wars series about the copyright in Stormtrooper costumes. The prop maker has been using the molds he used to make the original props for the movies to produce and sell new Stormtrooper costume pieces for the fan costume and memorabilia market. Lucas does not like this, and wants the prop maker to stop.

It’s an interesting story for copyright geeks, with some very technical wrinkles. Although the helmet designs did not originate with the prop maker, he made modifications and alterations to the design in the mold-making and casting process, so to some extent the designs are “original” to the prop maker. So who owns the design of the helmets as they came out of the mold? More fundamentally, there is a big issue as to whether a helmet is a “sculpture” (and hence copyrightable), or a utilitarian object (and hence, not ownable under UK law).

There are also some interesting international-law issues, and (although not directly applicable in the current instance of the lawsuit) some parallels to the works-for-hire/termination-of-transfers issues that are raging through the comic-book world lately (I’ll probably blog about that at some point, too. Comic book copyright issues are really cool!)

Why Should I Care Who Owns Stormtrooper Designs? I’m Not A Copyright Geek or a Star Wars Fan!

Technical copyright-geekery aside, this case points up some broader public interest issues in intellectual property and popular culture. Without suggesting that George Lucas, Lucasfilm (and a bajillion other entities) don’t/shouldn’t have any property-like interests in their creative works, Star Wars is a great example of a creative work that has taken on a lot of additional social meaning beyond Lucas’s contributions. The photos illustrating this post show just a few of the directions this property has been taken by the forces of human culture.

If Star Wars didn’t have this additional meaning, there wouldn’t be enough interest in Stormtrooper costumes for the prop maker to exploit! And although the cultural significance of Star Wars is certainly aided and abetted by the massive industrial content producer that is the Lucasarts empire, quite a bit of the social significance and meaning of Star Wars has only weak ties to Lucas’s properties, and/or represents tremendous creativity and meaning-building outside of formal authorship and ownership structures.

crowd of stormtroopers and other Star Wars cosplayers at Indiana State Capitol building
Members of the 501st Legion at the Indiana State Capitol in 2005. Photo by Britt, 501st C3 photographer.

We All Have Our Own Stormtrooper Costumes Somewhere (not literally, although there are more than you might think…)

Two children and an adult pose in stormtrooper costumes.
Photo from the 501st Nordic Garrison site.

It’s worth considering that under the first U.S. copyright term, the copyright in Episode IV (the first Star Wars movie, released in 1977) would have expired in 2005. Of course, that’s not the term Episode IV was actually created or released under, and copyright law as formulated in the first U.S. copyright act would have no idea what to do with something like the Star Wars franchise. However, copyright law as formulated in early U.S. copyright acts would also have had very little conception that an individual’s personal interactions with contemporary content could rise to the level of infringement.

Whether you’re building a screen-accurate replica Star Wars costume for yourself (or your offspring) in your spare time or not, chances are there are elements of contemporary content with which you connect and interact on a very personal level. And since copyright ownership is so expansive, chances are many of those pieces of culture that are significant to you are legally owned by someone else, who has a legal right to stop you from doing some of the things you like to do with that content. Fair use is one part of the law that makes a little room for personal interactions with content. But since a lawsuit to establish whether a use is fair or not is very costly, most settled law around fair use reflects the interests of industrial content providers. Occasionally, industrial interests lose fair use cases anyway, often because a court has recognized a greater public interest – see Campbell v. Acuff-Rose (the “Pretty Woman” case), for example.

Judge Kozinski made some important observations in Mattel, Inc. v. MCA Records, Inc. (the “Barbie Girl” case): “Trademarks often fill in gaps in our vocabulary and add a contemporary flavor to our expressions. Once imbued with such expressive value, the trademark becomes a word in our language and assumes a role outside the bounds of trademark law. (see paragraph 9) Of course, trademark and copyright are not as similar as many people think, but the central point rings true across all intellectual property that affects culturally meaningful works – while the works are certainly products of their creators, their cultural significance is a product of larger, more public, more communal, cultural forces. Yet much of the time, the law does not recognize those public and personal forces as officially legitimate.

Expanded copyright protection may (may) have increased production of resource-intensive products like the Star Wars universe. But it also means that our culture does not legally belong to us. Something to keep in mind the next time someone starts talking about copyright “balancing” public and private interests.

(True confession: One main reason I started writing this post was to use action figure photos as illustrations. It got more reflective after I started writing.This also represents the first post on this blog where some images are being used under a fair use rationale, rather than Creative Commons licenses.)

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