[Commons-Law] BBC sends legal threat over Dr Who knitting patterns

[S Rai]

http://technollama.blogspot.com/2008/05/doctor-who-partnerts-in-copyright-crime.html
--

The good people at the Open Rights Group
<http://www.openrightsgroup.org/>forwarded me an email they received
from a Doctor Who fan that goes by the
screen name Mazzmatazz, who has allowed me to tell his/her story. But
beware, this is a scary tale of copyright abuse that will have you hiding
behind the sofa, or perhaps it will send you into a
Whogasm<http://www.youtube.com/watch?v=KLnk-A1OkKk>
.

Doctor Who series Four started a few weeks ago with the episode "Partners in
Crime <http://www.sylvestermccoy.com/newdoctorwho/partnersincrime/>". The
episode featured a new creature generated from human fat called, what else,
the Adipose<http://en.wikipedia.org/wiki/Partners_in_Crime_%28Doctor_Who%29>(pictured
below). While I did not particularly like the episode, I reckon
that the Adipose made a good showing, and will probably become a memorable
Doctor Who creature (much better surely than the lovable yet ludicrous
Abzorbaloff <http://en.wikipedia.org/wiki/Love_&_Monsters>). The Adipose
however, seem to me to be the Doctor Who equivalent of Ewoks - small and
cute creatures which serve little purpose to the plot, and whose value seems
to be mainly as merchandising fodder (I notice that others
agree<http://www.denofgeek.com/television/25483/doctor_who_season_4_episode_1_review_partners_in_crime.html>
).

Enter Mazzmatazz. Mazz has a
website<http://www.mazzmatazz.co.uk/index.php?page=home>featuring
photography and knitting. In a display of amazing knitting talent
(and dare I say, too much time on their hands), Mazz has been making
knitting designs of Doctor Who characters; see for example, the excellent
Ood <http://www.mazzmatazz.co.uk/uploads/images/KNITS/20080329_0255.jpg>.
Under normal circumstances, a fan who makes knitting designs of loved TV
characters should not be the concern of copyright owners. However, these are
not normal circumstances. The new Doctor Who series is merchandising
gold<http://www.guardian.co.uk/business/2007/mar/23/shopping.toys>,
so much so that the BBC has been climbing up the world merchandise
chart<http://www.usatoday.com/money/advertising/2008-04-15-licensing-chart_N.htm>.
This may confuse people in and outside of the UK. The BBC is not a
commercial enterprise, is it? We in the UK have to pay licensing
fees<http://www.tvlicensing.co.uk/index.jsp>(costing a whooping
£139.50
GBP per year) to support public broadcasting, so why are the BBC relying so
much on their merchandising?

<http://www.technollama.co.uk/Images/Adipose.jpg>This is a good time to get
acquainted with how the BBC works. While the BBC in the UK is free of
advertising and supported partially by the licensing fee, expensive quality
programs such as Doctor Who and Torchwood
<http://www.bbc.co.uk/torchwood/>require investment that goes above
and beyond guaranteed funding through
licence fees alone. The BBC therefore has an international commercial body
called BBC Worldwide <http://www.bbcworldwide.com/>, which sells its
valuable intellectual property to the world entertainment market. The wide
success of titles such as Planet Earth and Doctor Who have pushed BBC
Worldwide's sales<http://www.bbc.co.uk/pressoffice/bbcworldwide/worldwidestories/pressreleases/2007/06_june/annual_review_2006_07.shtml>to
more than £800 million GBP, and merchandising is a key
part <http://www.bbcworldwide.com/annualreviews/review2007/default.htm> of
that strategy.

Where does our friend Mazz fit in this picture of corporate success? Well,
it seems that the Adipose knitting designs have hit a greed nerve somewhere
at the Beeb. While I have a copy of the entire communication between Mazz
and the BBC, I will reproduce it partially because the emails come with a
confidentiality disclaimer (although I must point out that I believe, as
others do<http://scholar.google.co.uk/scholar?hl=en&lr=&q=info:SZM9_S-nmdgJ:scholar.google.com/&output=viewport>,
that those email disclaimers are not even worth the bits they are written
on). The cease-and-desist letter reads:

"We note that you are supplying DR WHO items, and using trade marks and
copyright owned by BBC. You have not been given permission to use the DR WHO
brand and we ask that you remove from your site any designs connected with
DR WHO. Please reply acknowledging receipt of this email, and confirm that
you will remove the DR WHO items as requested."

Interesting choice of words to say the least. Further communication
continues to stress the point that Mazz's designs constitute unlicensed
merchandise, and that BBC Worldwide has every right to stop others from
distributing their property. However, Mazz is not selling merchandise,
he/she is providing a knitting design to tell others how to make their own
versions of the Adipose. While commercial exploitation has no bearing on
whether there is copyright infringement, I think that it should be a huge
consideration for BBC Worldwide when deciding to prosecute a fan who clearly
loves the show.

What about the legal argument? Does the BBC have a case? On the face of it,
the BBC would be correct in their assessment that Mazz is infringing their
copyright. TV characters are protected by copyright, and all sorts of fan
art would be found to be infringing. However, there is a growing body of
literature<http://scholar.google.co.uk/scholar?hl=en&lr=&q=fandom+copyright&btnG=Search>on
the subject of the uneasy interaction between fandom and copyright, as
many authors turn a blind eye to non-commercial use of their characters
online. Of course, when the work becomes commercial, they will take
action<http://technollama.blogspot.com/2008/04/harry-potter-and-maze-of-fair-use.html>
.



However, Mazz's case is more complicated, as copyright is less
clear<http://www.law.ed.ac.uk/ahrc/script-ed/vol3-1/torsen.asp>about
transformative art. Nobody would claim that Andy Warhol does not have
copyright over his iconic Marilyn portrait, or his Campbell's Soup montages,
even if they use other's IP. Similarly, there have been various cases where
the mere transformation for artistic purposes from one medium to another was
deemed to have enough originality to warrant its own copyright protection
(see for example Alfred Bell v
Catalda<http://www.coolcopyright.com/cases/chp2/bellcatalda.htm>).
However, copy too much and you might be found to be infringing, the prime
example is Roger v Koons <http://www.jstor.org/pss/1123081>, pictured above.
While U.S. cases seem to be moving against transformative copyright, the
same cannot be said for case law here in the UK.

<http://www.technollama.co.uk/Images/knitadipose.jpg>My first reaction when
I read about Mazz's knitting case was that this was straightforward
infringement, but something kept nagging me. I asked our resident copyright
expert Charlotte
Waelde<http://www.law.ed.ac.uk/ahrc/people/viewpeople.aspx?id=2>,
and she remembered some case law which blurs the picture even more. In King
Features Syndicate v Kleeman [1941] AC 417, the defendant was accused of
having copied cartoon strips depicting "Popeye the Sailor" and placing them
in brooches and other media. Although the defendants lost, the issue of the
independent design was explored. The Lords found that the figures could
constitute designs as protected in the then Copyright Designs and Patents
Act 1907. Another relevant case is Anacon v Environmental Research
Technology [1994] FSR 659. This case has nothing to do with art, but with
circuit design. In this case the defendants made a list of the components in
a circuit and their interaction with one another, and then made a circuit on
its own that looked completely different to the original. The defendants
claimed that the their design was artistic, and therefore different.
However, Jacob J found that the actual list was a literary work, and
therefore it was subject to copyright protection as such. This is relevant
to Mazz's design, as it proves that a knitting design is subject to its own
protection, and that it may be dissimilar to the actual artistic depiction
of the character. This issue was also explored in Sandman v
Panasonic<http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Patents/1998/346.html>,
where Pumfrey J astutely described the dichotomy between design and the item
resulting from it to that of musical notation and the resulting tune. Each
has its own type of protection.

In other words, I strongly believe that BBC Worldwide's claims are
over-reaching. While there could be infringement, I submit the hypothesis
that Mazz has done enough transformation to the Adipose character to claim
copyright over their design.

The cease-and-desist letter also makes a claim on trade marks. I know next
to nothing about this subject, but I would be extremely surprised if BBC
Worldwide had managed to register the "Adipose" mark. I did a quick search
in the UK-IPO <http://www.ipo.gov.uk/tm.htm> Trade Mark database and I could
not find it registered.

Concluding, the BBC may not have a straightforward case if they decide to
sue, and they could very well lose. I also believe that they are misplacing
their energies pursuing a fan who has done nothing more than to display
their love to the show by making a highly original design. While commercial
use is not relevant to the infringement case, it should be noted that Mazz
was not selling the design, and had actually licensed it under a Creative
Commons licence.

So, will the real Adipose please stand up?
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