The devil is in the detail

I have commented on copyright infringement in regards to video games before in some of my previous posts, but I have been thinking lately about what this means for other creative mediums. In particular, can fashion be protected under copyright law? In this day and age, with 3D printers, online shopping and very skilled seamsters cheap knock-ff of very expensive and popular items can be found across the globe in attempt for these people to make a quick bit of easy cash. In 2015 EU’s Office for Harmonization in the Internal Market conducted a study that found that 9.7% of all items on the market were counterfeit, and as a result accounted for around €26.3 billion of revenue lost every year. While it may not be a mainstream issue, it is clearly a huge problem for those who wish to work within such an industry.

Why else does this matter?

In the 2006 movie The Devil wears Prada, Meryl Streep’s character has a little speech about why fashion matters and the end punch line is that it all matters, because you live your life in it. We spend every day wearing clothes, that while we do not think are overly important, they still say who we are: Our personal style helps to create first impressions to those we meet and how we carry ourselves through society. Trends in fashion also reflect the issues of society at any given time: punk rockers dressed the way they did to silently protest against the conformity seen throughout the rest of society, just as vegans can now wear clothing that has little to no impact on the environment and causes no harm to animals. As much as we don’t want to admit that we care about ‘fashion’, we all care about style in that we all care about how we dress ourselves, even if it is only for the feeling of power that is gives us to wear what we like, how we like and when we like.

Blair Waldorf (played by Leighton Meister) in Gossip Girl

How does the law approach it?

As with everything to do with law, interpretation is everything. Lucky for us, fashion is all about interpretation and based on the statute alone, fashion is not actually mentioned under the Copyright, Patents and Design Rights Act 1988. Under this law, a creative medium needs to fall within one of the categories within the legislation and while there is some leeway as to how the courts label fashion, it is most likely to fall within the definition of ‘artistic craftsmanship’. Now this is not really helpful, but thankfully there is a LOT of case law to refer to in order to try and make a decision.

In Hensher v Restawhile, the House of Lords stated hat a prototype for a distinctive three-piece lounge suite, which was intended for mass production, was not artistic although the Lords differed in their reasons as to why. Then there was a case about a baby’s cape which was held not to be artistic because there was no intention to create an artistic work, just as a patchwork bedspread was not deemed to be artistic because although the designs were “pleasing to the eye” they were not sufficiently creative. This has been discussed in fashion relevant case law where sweaters and cardigans were held not to be artistic. Although the items in question had been displayed in the V&A Museum, they were exhibited as examples of developments in fashion rather than as works of art. One case in recent years that has also addressed this issue was related to the storm trooper helmets from the Star Wars movies, where the High Court held that the helmets were not artistic because their purpose was not aesthetic. The Supreme Court later held that the helmets were not sculptures, and could not be protected in that way either, which brings to attention the need for aspects of fashion to be protected from copyright infringement.

The majority of cases seem to show that there is a lot of debate over whether fashion can count as ‘artistic’: as a rule of thumb it seems the work must be aesthetically appealing to the general population or must have been created as an artistic work. To me, art and an ‘artistic’ creation should make you feel something. Now this may be confusing to those who are interested in fashion: How anyone can look at Charlize Theron in that gold Dior dress, or stare at a pair of Louboutin high heel courts and not see the art in them might as well be dead inside.

Image result for j'adore gold dress                                   Charlize Theron in the Dior J’adore perfume advert

On the other hand, “craftsmanship” is potentially easier to meet. Knitting and tapestry-making have been treated as crafts, usully on the basis that they are one off creations that were intended for artistic work. In Hensher v Restawhile, Lord Reid and Viscount Dilhorne said that the requirement for craftsmanship implies that a work must be hand-made whereas Lord Simon held that “craftsmanship” cannot be limited to handicraft and that the word “artistic” in itself is incompatible with machine production. This therefore suggests that if a designer is to make a one-ff, limited edition piece of haute couture clothing that is not designed to be mass-produced, then this could potentially be protected under ‘craftsmanship’ and thus protected by copyright. But what does this mean for mass-produced clothing?

In short, the UK is still pretty slow on the protection available for fashion under copyright law. There have been many debates and papers on what can be done about this, with many of them pointing towards the European model of an open list: In France, Germany and even in the US, any work which is original can be protected by copyright. In France, the threshold for originality is a work which “bears the stamp of the author’s personality” and in Germany copyright protects “personal intellectual creations”. This allows for a much smaller threshold to be met by designers and as such less chance of them being copied without the author’s consent. It also means that there is no need for long and complex case law or debate around the issue as it is simply stated within legislation and only needs to be discussed when it needs to clarified on a large scale. This appears to be not only the simplest option for designers, but also the easiest way for the UK intellectual property offices to keep an eye on potential infringements on the open market.

Image result for fashion gifs

Here today, gone tomorrow

One potentially reason why there is no real need for there to be protection for fashion is because fashion is always changing: What is fashionable this week will most likely be forgotten about in a months time. Fashion is a constantly evolving aspect of society and while trends may come and go, the fashion industry is constantly in a state of innovation and trying to create pieces that have never before been seen. Trends are only meant to last a few years at the most, as anytime after that they either become iconic for the time period, or they become cringe-worthy (in some cases they can be both!).

What do you guys think? What would you want to see within the fashion industry?

T xx

 

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The real OG

‘You are unique…just like everybody else.’

This simple statement is a pretty common oxymoron. While it is still true that there are no two people who are 100% identically the same, the fact that we are all different is one of the main things humanity has in common. So is there such a thing anymore as originality? No matter what we wear, how we act or what we create, there is a high chance that there is someone else out there in the world who is doing the exact same thing. But that doesn’t mean it’s all doom and gloom…

Is originality even a thing?

Everyone is shaped by their experiences: Everything that we come into contact with over our lives shapes us into the person and the personality that we become. Due to this, inspiration is everywhere and we may even be influenced by things that we aren’t even aware we have noticed. A newspaper article from 10 years ago could be the reason you want to draw pictures, in the same way that a loud car stereo blasting 80s pop driving past you may make you want to start writing. It could be near impossible to pinpoint the exact reasons why we are all the way we are, but it doesn’t stop the fact that we have all been influenced by something else, which was no doubt influenced by something before it and so on and so forth.

Image result for originality gifsFightclub breaking all the walls

So it possible to still be original? If everything we ever create is nothing more than a step up from something we have seen, can we even say that it is our own work? From a legal standpoint, intellectual property has guides in place to ensure that no work has been intentionally copied: As long as you can prove that you created a piece of work through your own thought processes and own design plans, chances are you’re going to be fine (obviously it’s a bit more succinct than this, but I don’t think I have the time to explain it all!). But on a more philosophical level, is it possible for any of us to claim that our brand new identity or our way of dress is an original one?

Subculture symmetry

Everyone knows the old troupe: In high school you have those who follow the norms of society, and then you have the odd little groups of people who do not.

Image result for mean girls group gifs Mean Girls showcased this perfectly…

From the sociological aspect, all of these little groups within society are known as ‘subcultures’ where everyone within that subculture shares the same norms and values. However, in today’s society these  subcultures can have very blurred cut off points within them. I, for example, would not necessarily fit into one subculture alone: I may be blonde, wear a lot of pink and love pop music, but I also love video games, superheros and reading science fiction novels…I also don’t think I’m a mean enough person to have been one of the Plastics, but I digress. Subcultures by nature always include some form of similarity: members tend to dress the same, talk the same and even believe the same things. Key examples of this are the 1980s Punk, the 2000s Goth and even now the emergence of the Seapunk. They all look the same as each other, but at least they’re not mainstream. In some ways, subcultures go against originality as the entire practice seems to try and place members of society into boxes. Is this why originality is so hard to come across? The use of labels?

So what does this mean?

Today’s society is a massively innovative one with common social norms being challenged everyday from every aspect of itself. Young people are leading the gender revolution, wanting to do away with normal sexuality labels and gender stereotypes and instead move to an inclusive and free state of simply just existing: love who you love, be whatever gender you decide, believe whatever it is you wish to believe…but know that you will be accepted purely on who you are rather than how you have been socialised and labelled. For some people, especially those in a creative setting, this can be a whole new challenge, as trying to be memorable in a world where everything merges together is not an easy task. but perhaps this is where we fail.

Moving forward…

Just because something has done before does not mean that it is not original or innovative. it is common knowledge that anyone can copy something: If i can’t draw, I’ll just trace a picture, if I can’t write songs, I’ll just mash a load together. Originality comes from the little bits of you that you add to it to make it better: Five Night’s at Freddy’s fans are another key example of this as while the games they make are not, by nature, original content, the stories they create, the character interactions they add and the overall game play of said games are enough to make the new games original enough to improve and add to the existing base. Everything may not be original, but if something is added to the original to progress the entire idea forward, then that alone should be enough to be original.

“Even in literature and art, no man who bothers about originality will ever be original: whereas if you simply try to tell the truth (without caring twopence how often it has been told before) you will, nine times out of ten, become original without ever having noticed it.”

– C.S Lewis

T xx

Freddy Fazbear and his F**Kboys

One indie game of high popularity in recent years has been Five Nights at Freddy’s. This is a rather simple point and click horror game, where the player controls a night watchman with the aim of surviving numerous nights of increasing difficulty by not being killed by the animatronic machines that come ‘alive’ at night. With its use of jump scares and simple controls, this game has a very active and loyal fan following and as such there have been some fan made versions of the game.

Image result for five nights at freddy's gif

^^ Freddy Fazbear ^^

One game in particular, Five Nights at F**kboys, may not be suited to the original game’s current audience. This version of Freddy’s involves Freddy trying to have a wild night of debauchery and partying, with many of the characters wearing inappropriate clothing and one character performing inappropriate acts whenever you see him on the surveillance cameras. It is also recommended to do a shot of alcohol before each level, so that as each level gets harder, the player also gets more intoxicated, and this supposedly makes for a far more enjoyable and entertaining experience. The crude and adult themes throughout this version are obviously not suitable for the relatively younger audiences that were drawn to the original Freddy’s game and yet they can still easily access it under the impression that it is made by the same developers.

So what can developers do?

By issuing proceedings against this type of copyright infringement, it allows developers to have control over how their work is used, especially when it comes to the audiences they are trying to protect. In this sense, control is therefore maintained by the developers and their game is protected from negative infringement. In more tactful situations however, negative imaging is exactly what the copier wished to do in the hope of tainting the reputation of the original game to such an extent as to render it unappealing to consumers.

The problems?

It stands to reason that developers can not always issue proceedings against people who infringe their work: the cost alone can be substantial, and for companies and developers just starting out in the industry this cost can be crippling. However it could be argued that the main reason why the developers wouldn’t want to issue proceedings is because of the impact it would have on their overall image. If a developer does nothing but condemn those who copy their work, they are in some way dampening the appeal of their game: FNAF has bee so successful because of the massive fan base that has built around it, and this is mostly due to the ability of fans to create their own interpretations of the games which help to add story and experience to the FNAF world rather than just as one lonely game.

Most games involve some form of player communication in the form of either online multiplayer modes of gaming, or simply through the online forums that fans create in order to discuss the game, their tactics and share their own experiences of the game. These online forums create pathways through which people can gossip about the game developers and in a world as digitised as ours, news spreads very quickly: The second word gets out that there is a new upgrade, a new map or a new way of beating the game these forums are flooded with information and distributed to hundreds upon thousands of people. This clearly raises the issue of what litigation can do to a company’s public image. The main concern of any solicitor when advising a client on this issue should be ‘What would the fans make of this situation?’, since while they do not make the final decision as a legal judge would, commercially speaking the voice of the fans is the only voice that should really matter to a video game designer: If the entire fan following (or to some extent even a small majority of them) feel that the designer is ‘attacking fans’ with legal proceedings, then the entire community basis on which the game rests becomes unstable and, for the most part, will begin to falter before completely dying away. In some respects, video game fame is fleeting, since technology and software is changing so dramatically that it can almost be impossible to keep up with. As a result, it is probably better for a game developer’s brand to be left on a high rather than risking becoming labelled as ‘the company that sues its fans’.

Image result for five nights at freddy's gif

^^ One of the faster characters, Foxy ^^

What can be done?

It is clear from simply reading the comments on gaming forums that gaming fans are a loyal and fierce breed of fans. It could also be argued that people on the internet appear to have feel more confident online and as such seem more likely to speak their mind, and most certainly will not hold back on comments or remarks if they feel justified. This in a way acts as a secondary level of enforcement without the need for expensive court procedures or solicitor fees, as the fans do the hard work for the developer when it comes to protecting a game’s image and reputation. If the fans come across work that is infringed, some may flag this with the streaming service itself for breaching without consent of the author, while others may even bully the infringer until the material is taken down. From looking at fan made games as well, it would appear that most fans are happy to state that their game is a copy (even if only to a small extent) of a game already in existence. It is perhaps this admittance of copying that makes it acceptable within the eyes of the entire fan base as it shows others that they are not infringing to make a profit or for any other malicious reason, but rather to add to the experience that the original already created in order to make it a better experience for the fan base as a whole. In this sense, copyright infringement when it comes to games could be seen as an altruistic act that is done more out of love and admiration for a developer’s work than out of mere thievery and deceit. This in turn therefore means that when a person does infringe the work but tries to claim that this is all their own original creation and that people should pay them for it, the fan base may take that as a personal assault on their own gaming subculture, and as stated at the beginning of this paragraph, decide to oust the immoral infringer themselves in order to protect their own interests in the game as a fan.

The conclusion?

FNAF is an example of a game that is more or less defined by its fan base. The idea that fans can add to the FNAF experience means that the literal copyright infringement can be overlooked if the work in question still maintains its integrity. In this sense, perhaps copyright infringement is simply a fall back position: It is not a concrete law that must always be adhered to, as it is essentially up to the original author whether or not they see the infringement as damaging to their own brand. In the case of Freddy, and his many many renderings, impersonation really is the sincerest form of flattery.

 T xx

Gotta Condemn them all!

Just like every other twenty-something, I spent the majority of my spare time last year wondering around my neighborhood trying to catch Pokemon on my phone thanks to the creation of Pokemon Go!. I grew up playing these games and this mobile game allowed me a chance to achieve a dream that I have had since I was 8: To become a Pokemon master! However as I grew up, I noticed that some people had problems with Pokemon, claiming that it promoted and glorified animal cruelty to children.

Pokemon vs PETA

In 2012 People for the Ethical Treatment of Animals (PETA) released a satirical version of Pokémon titled ‘Pokémon Black and Blue’, an online game where you rescue Pokemon from real life animal abuse situations. PETA have been known for their shock tactics when it comes to animal rights, from campaigning against cosmetic testing on animals to using fur in the fashion industry. PETA have stated for some time that Pokemon, while they accept it is fictitious, creates a rosy pictures of things that are actually abusive. They have stated that confining Pokemon to their Pokeballs mirrors the housing of animals in factory farms, and the use of Pokemon to fight each other mirrors the animals used in fighting arenas for money. While this may seem a stretch to some, there are some similarities and it can be easy to see why PETA feel the way they do about Pokemon.

It is clear that the creation of the satirical Pokemon games is an infringement on Nintendo’s copyright. Yet why are PETA doing it? Copyright infringement is a crime because of the risk that the infringed work could have negative effects on the original brand itself: A cheap rip-off has none of the insurance or the quality of the original and for members of the pubic who can not tell the difference this can be highly problematic. Yet with PETA, this is exactly what they wish to do to Nintendo. It could be argued that PETA want to associate the Ninetendo company with games that glorify and promote animal cruelty in hopes that this will deter people away from the brand entirely. But does a company as large and successful as Nintendo really care?

Image result for pokemon handshake gifs

Chikorita vs Charizard….The new David and Goliath?

However, the release of the newest Pokemon game installment, Pokemon Sun and Moon, actually addresses PETA’s concerns in a subtle but effective manner. During the newest game, you are accompanied for some of the main story line by a young girl named Lillie, who states on numerous occasions that she does not wish to fight Pokemon as she doesn’t want to see them getting hurt. There is also evidence of different professions within the Pokemon world, with some scientists stating that they wish to only encounter Pokemon in order to record their discovery, and also other NPC (non playable characters) who state that they want to become a Pokemon Carer rather than a Pokemon Trainer. it would appear that Nintendo are taking heed of PETA’s campaigns and are trying to create a game that allows the player a choice of how they interact with the Pokemon rather than simply being about Trainer progression. This could be seen as an effective new step against copyright infringement, as it shows the original brand acknowledging the infringed work and, to some extent, even taking on board some of their ideas and concerns in order to produce a product that will now appeal to a wider audience than the original one did. In this sense, it is practically free labor, as the developers have had to do very little research to find out what issues the general public have with their game. It may not be much, but it is a step in the right direction for Nintendo to try and get PETA to leave them alone.

Should the law step in?

When it comes to Pokemon it would appear that a line needs to be carefully drawn: While there is no evidence to suggest that Pokemon players actually commit acts of animal cruelty, the generic theme of the game does very clearly promote using ‘animals’ as ‘weapons’. On the other hand, it could be seen as condescending to assume that players are simply going to repeat actions in a game simply because the game allows for it in the story. This issue can be linked closely to the issue discussed in the previous blog post, ‘Video game censorship’. It would appear therefore that the law should only step in with the companies involved raise the issue in a legal setting: mediation could be the future for copyright infringement of video games, as a middle ground can be agreed between the two parties.

Image result for pokemon handshake gifs

Pikachu and Eevee…they know how to reach an understanding

T xx

Intellectual Property Law

This is intended to be a very brief introduction to Intellectual Property Law, so as to familiarise yourself with what my future blogs will touch on and some of the issues that they raise.

What is it?

Intellectual property law is a wide umbrella term that is used to encompass many different aspects of the creative world. In short, intellectual property law aims to protect the expression of creative work in it’s many varying forms. Many of them do overlap so that alone can raise confusion! A little bit of the basics:

Copyright Law

This area of IP is governed by the Copyright, Designs and Patents Act 1988. It is defined under Section 1, subsection 1 as being a property right which subsists in the following descriptions of work: (a)original literary, dramatic, musical or artistic works, (b)sound recordings, films  broadcasts, and (c)the typographical arrangement of published editions. In layman’s terms, if you have an idea and have expressed it as a book, a drawing or a song, then that is automatically protected by copyright law and as such, no one can steal your idea and pass it off as your own.

Patents

Patents relate to inventions. Anything that an inventor creates can be protected by a patent. Under Section 1, subsection 1 of the Patents Act 1977 a patent may be granted only for an invention if the following conditions are satisfied: (a) the invention is new, (b) it involves an inventive step (i.e is not simply an ‘upgrade’ on a current invention) and (c) it is capable of industrial application (i.e can the invention actually be used in everyday life). There are however some exceptions (S.2) such as a discovery, scientific theory or mathematical method; a literary, dramatic, musical or artistic work or any other aesthetic creation; a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer; the presentation of information.

Design Rights

These are closely linked to Patents and are concerned with protecting the overall shape and appearance of a particular object. This type of protection is automatic and last for either  10 years after it was first sold or 15 years after it was created, whichever is earliest. If you wish to protect your design for longer, there is still a formal registration procedure available as long as your design meets the criteria; be new; not be offensive (such as featuring graphic images or words); be your own intellectual property; not make use of protected emblems or flags (Olympic rings, for example); and must not be an invention or how a product works (you’ll need a patent instead!). If the design meets all these criteria, then a registered design right will protect it for 25 years, with a renewal needed every 5 years.

Why is it needed?

Without getting too bugged down in the legal theory surrounding IP Law, it is needed in order to protect a persons’ creative expression. An artist can protect their paintings, a writer can protect their novel and a musician can protect their albums. Personally, I find IP Law fascinating, because it is to some extent allowing people to protect their own ideas and creative outlets in a more theological manner than strict property law. For example, if I were to write a book, and someone was to steal the physical copy of the book, that would be a crime for stealing my property. But if someone was to steal the overall story, publishing the entire story under their own authorship name, then that would be a crime for stealing my intellectual property and my creative expression. In short, it prevents someone taking credit for work that someone else has done.

Why the fascination?

I have always been surrounded by very creative people: My father is a drummer, so I was brought up surrounded by musical instruments and musical scores. My mother is a photographer and studied as a journalist, so I think that is where my love of writing stemmed from. From as long as I can remember, I have been a reader. My main goal in life is to have a personal collection of books that rivals the British Library! However, I can just about draw stick men, my photographs are always blurry and the closest I got to mastering an instrument was the recorder when I was 8. I found that my true calling was in the academics, and it was during my time at law school I discovered a way of using academic means to help protect creative outlets.

This subject is easily the marmite of the legal world: You either love IP or you hate it. And I absolutely adore it.

I hope this brief introduction has helped you understand the basics of what I will discuss throughout this blog, and I hope I can instill some of my passion in you as you read.

T xx