May 2007
Thou Shalt Not Infringe My Copyright
Sony and the Church of England seemed to have settled their differences over the entertainment giant’s use of a church bearing a striking resemblance to Manchester Cathedral as a backdrop in their new game, Resistance: Fall of Man. Sony sent a formal letter of apology to the Dean of Manchester Cathedral, the Very Rev. Rogers Govender which stated:
"It was not our intention to cause offence by using a representation of Manchester Cathedral in chapter eight of the work. If we have done so, we sincerely apologise."
The case initially did throw up some interesting copyright points after the Church consulted their legal advisors. The cathedral is an artistic work under Section 4(b) of the Copyright Designs & Patents Act 1988 (“the Act”) however there are a number of hurdles that would have to be overcome if the Church were to be successful.
Firstly it is unclear who would own the copyright in the building and even if the Church had commissioned an architect to create the church they still may not own the copyright in the work.
Secondly the copyright in the work only lasts 70 years after the death of the creator and the present church dates back to the thirteenth century which means it is quite possibly out of copyright. The cathedral may have been reconstructed after it was bombed during the Second World War (which incidentally would not have been copyright infringement under the Act) however this is unlikely to be capable of making it a new copyright work, unless the reconstruction had involved some kind of new labour, skill, and judgement on the scale of the recreation of the Globe theatre. However the cathedral has had work done to it over the years including the addition of a Victorian Porch and a library annex at the turn of the twentieth century, and the commissioning of new stained glass windows at the West Windows in the 1970s by the artist Anthony Holloway. It is therefore conceivable that some of these works, particularly the stained glass windows, could be still under copyright.
If the church overcomes this argument they would more than likely fail under Section 62 of the Act which allows artistic works situated in public places such as churches to be photographed, painted or filmed. This allows for films or postcards featuring modern buildings such as the Gherkin to be sold without having to pay royalties to the likes of Sir Norman Foster. There are often agreements/licenses put in place when TV and film production companies go into buildings to film but this has more to do with trespass and health and safety laws than copyright.
The church could rely on passing off if it could show that Sony were trading off the goodwill or reputation of the Manchester Cathedral and members of the public had mistakenly believed that the Church had endorsed the game leading to their reputation being damaged, presumably on the basis that they had endorsed a violent shoot ‘em up game. However they would have to show that consumers had purchased the game because it featured Manchester Cathedral or that they actually believed the Church would endorse such a violent game or that members of the public would even recognise the cathedral.
On this basis it seems likely that the Church will have to settle for a letter of apology.
Briffa’s Opinion
This case raises the question of how much control institutions such as the Church have over their own property. Traditionally the owners of buildings could at least rely on their property rights to prevent people coming onto their premises and filming or painting, however nowadays it is possible to recreate the inside of buildings without even going into them. Images can be downloaded from the internet and computer generated graphics can recreate those same images – a form of cyber trespassing.
This case has attracted political attention with Tony Blair and Jack Straw both condemning Sony’s actions. Jack Straw in particular stated in the Commons that:
"This is totally unacceptable practice by Sony. They have a moral duty to withdraw this game and to make reparations to a church charity. They should also have some enlightened self-interest in the damage they are doing to what in the past has been a reputable brand."
Maybe it is this last comment that will prevent companies like Sony doing this in future.