It's "re" at the End Today

There's a rather British flavor to today's link sausages... let's just hope it's from good porter or dark ale and not from Marmite, ok?

• The Force is not with George Lucas. It is, instead, with Brainerd Currie. And now, US-based fen trying to get authentic (as in "cast from the original mould") Imperial Stormtrooper helmets will have to go to England to get them. Maybe.

  The Supreme Court of the United Kingdom issued its ruling in Lucasfilm Ltd. v. Ainsworth, 2011 UKSC 39 (27 Jul 2011) (PDF), this morning. Lucasfilm sought to enjoin the UK-based craftsman who created the original Stormtrooper helmet design and mould for the film from various descriptions and drawings (and took the mould with him at the conclusion of principal photography) from making replicas using that mould and selling them without a license from Lucasfilm. Lucasfilm pointed to a US-court copyright decision holding that the helmet design was a protected, copyrightable aspect of the films as a whole, and enjoining sale in the US. The UK Supreme Court held, though, that under the UK's 1988 Act, the useful ("utiliarian") aspect of the helmets, together with the numbers of them created for the film (which only emphasized the utilitarian purpose), overcame any UK law copyright claim. Id., ¶¶ 42–49.

  But that is where Brainerd Currie, the Sith Lord of Choice of Law, comes into play. The more-interesting question is whether the UK courts should, instead, have used US law... and merely applied the fully litigated US result against the UK-resident Ainsworth. OK, it's more interesting to civil procedure geeks like me, anyway... even though it should be more interesting to authors, too, for many of the same reasons that US-based authors need to be concerned with UK-based libel law, as I've discussed here ad nauseum. Here, the UK Supreme Court reached what is probably the right result, but for very much the wrong reasons (and reasons that will ultimately only add to the confusion). It held that the UK court could, and perhaps should, have heard Lucasfilm's claim for enforcement of the US copyright (and presumably domesticated the judgment). Id., ¶¶ 105–09. It did so, however, by a rather tortured expedition through precedent without a theoretical basis — the theoretical basis that would be provided by the powers of the Force, or at least of Currie's interest analysis. The ultimate problem with the UK Supreme Court's decision is that it leaves far too much open, even in this case; the judgment does not tell the litigants what the effect of its split decision is on the litigation in question, let alone on broader issues!

  So, where does that leave us? Waiting, I'm afraid, for a Jedi Knight wielding a working lightsaber to cut a rather Gordian knot. The only winners here — as usual — are the lawyers; it remains unclear whether, for example, whether a UK artist who created arms and armor for the Knight of Flowers (The Game of Thrones) solely from the text of the book, without reference to the TV production, could be correctly sued in a UK court for violating either US or UK copyright law in creating a derivative work. And that's before one considers remedies such as damages as a remaining issue. In short, just like the first Star Wars film, this ultimately decided nothing; there will be at least two sequels, and — given the appallingly poor writing endemic in law and reflected in this morning's decision — the dark menace of a potential prequel trilogy. In 3D.

• Netflix is demonstrating what I've argued for a couple of decades now: That the best way to deal with piracy of copyrighted materials is to offer them cheaply, conveniently, individually, and in better quality than the pirates, so that the premium for the quality seems a bargain. Bluntly, this is also the best argument against "tiered" cable TV plans that force someone who wants, say, ESPN, ESPN2, AMC, USA, TNT, and Comedy Central only to also "buy" Fox News, CBN, MTV, CMTV, and a host of other channels that are never, ever watched (and even locked out of one's own remote...). Not that that's a hypothetical or anything like that. In short, "bundling" needs to be for artistic reasons (such as the foolishness of buying individual songs from a fully integrated concept album), not for commercial advantage (such as the "bonus tracks" on the reissue of that particular concept album).
• And that's especially relevant if the products in question are distinguished only by their packaging, not their content. The publishing industry needs a 2x4 to the head on its pricing, availability, and format decisions, and the marketplace is the only possible source of that 2x4. Perhaps the industry should just go to a few public libraries west of the Hudson for a hint of what it is missing...

  And bribing African nations to adopt your textbooks is no solution, either.

• If you're going to write a book review in England, get your facts straight... or you might lose a libel suit. For a book review. There are no winners here...
• And in the most important purely literary news of the day (with a nod, again, across the Pond to the original), I point to the "winners" of the 2011 Bulwer-Lytton contest, which are "winners" like Charlie Sheen is. And, perhaps fortunately, the contest is open only to "fiction"; otherwise, the winners would all be from legal documents, and even judicial orders!