Church of England try to send Sony on massive guilt trip

Background
You may have seen the coverage in the press over the last couple of days about the Church of England's outrage at Sony for inclusion of a building allegedly similar to Manchester Cathedral in PlayStation 3 game "Resistance -- Fall of Man". The Church's PR machine is setting up a classic "good fights evil" story in an ironic reflection of the game itself.
If you want a flavour of the coverage, have a look at the mainstream press including the BBC, Guardian and The Times. You can try searching for more stories using this search on Google News, but mostly they are just all telling the same story in the same words largely, making it look like a massively well picked-up press release to me. However, it's strange that there's nothing on the Church of England's "latest news" section of their website. Even the Wikipedia entry for the Cathedral has undergone a load of editing in the last few days to include a reference to the story.

If you want to see what the fuss is about for yourself, then have a look at this clip on YouTube (only 6500 hits at the time of writing) - but its about 10 minutes long. To contrast with the original building, try the Manchester Cathedral virtual tour. The Church don't seem to be against the use of the Cathedral in audio-visual materias if the Wikipedia entry is to be believed, which says of the Cathedral:

"It was the setting for a marriage at the start of the 2006 episode of Cracker."

Chris Vallance of BBC Radio Five's "Pods & Blogs" interviewed me last night about this whole subject so I thought I'd better get my detailed post finished! Read the full post or listen to the show.

So, you might be asking yourself: what rights might Sony have infringed here?

Copyright
The most obvious thing to explore is Copyright. Copyright is a right that comes about automatically and gives the owner of the right the ability to stop people copying. Sounds like it might help the Church at first glance, particularly since section 4(b) of the Copyright Designs & Patents Act 1998 specifically provides that a work of architecture being a building is a type of artistic work capable of protection by copyright.

However, and here's the problem, copyright is limited in time: it doesn't last forever (a popular myth that there is perpetual copyright in "Peter Pan" is wrong - it expired on 31 December 1987 but the statute does provide that the trustees of Great Ormond Street are entitled to a royalty even though it has expired). Copyright in artistic works lasts for 70 years from when the creator dies or if that isn't known, 70 years from the work made.

We know from the Cathedral's own time line that the Cathedral was built in 1215. Some more work was carried out between 1330 and 1360 and also between 1465 and 1481. More development happens between 1501 and 1515 and some reconstruction between 1649 and 1698. A series of rebuilding and repairing takes place between 1855 and 1897. Some new bits are added during the early 20th century including a library annex in 1904 and the refrectory in 1934. There was a lot of damage to the North-East of the Cathedral during the Second World War. Restoration takes almost 20 years between 1941 and 1960. In 1996 an IRA bomb caused some damage too. (A building, therefore, with some violent history during the last century).

Now, it's also important to know that with copyright reconstructing a building doesn't infringe the original copyright according to section 65 of the Copyright Designs & Patents Act 1988.  The Act also says that slavishly copying an earlier work does not give rise to a new copyright.

So, the first key question on copyright is this: what elements of the building design were created between 70 and about 140 years ago and weren't simply reconstructions? (I've assumed an average life-expectancy of 70 years to be generous). This takes us back to about 1867. Looking at the timeline again, the likely candidates are the following items that look as if they were "new" and not merely reproducing what had gone before:

• 1891 - A new south porch is built
• 1892 - The Baptistry extension is built
• 1904 - Library Annex is built
• 1976 to 1995 - The West Windows are replaced in stained glass by the artist Antony Hollaway

So, if there is any copyright, the next question is this: does the Church own that copyright? We can't tell this. However, what I can say is that just because you pay someone to design and build a building for you doesn't necessarily mean that you own the copyright in the building.

If the Church can actually make out that some copyright exists here, and it's not looking great, then the next question is this: has Sony actually infringed it? Section 17 of the Act  says:

"17. Infringement of copyright by copying.

(1)  The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows
(2)  Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.This includes storing the work in any medium by electronic means.
(3)  In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work."

Trying to work out if aspects of the game substantially reproduce the parts of the building in which copyright might exist is clearly a task that I can't cover on this blog for two reasons. Firstly, I don't have all the information. Secondly, I'd want to be acting for one party or the other and get paid for doing that analysis!

However, the biggest get-out of all for Sony is section 62 of the Act, which says and I set out in full for the full impact and made the key bits bold:

"62. Representation of certain artistic works on public display.

(1)    This section applies to—

(a) buildings, and
(b) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.

(2)    The copyright in such a work is not infringed by—

(a) making a graphic work representing it,
(b) making a photograph or film of it, or
(c) broadcasting or including in a cable programme service a visual image of it.

(3)  Nor is the copyright infringed by the issue to the public of copies, or the broadcasting or inclusion in a cable programme service, of anything whose making was, by virtue of this section, not an infringement of the copyright."

So, it seems to me that Sony were perfectly entitled to do this and did not need permission and the Church doesn't have any grounds for complaint.

Passing off

See our guide to passing off for an overview about this remedy. To succeed on this claim the Church would have to make out a case that:

• The visual image of Manchester Cathedral has a significant reputation in the minds of the public (as opposed the general image of a generic church)
• That Sony have somehow traded on that reputation in selling the game
• That members of the public have bought the game on the mistaken belief that the Church had somehow endorsed the game
• The Church suffers damage to its reputation as a result

I have to say, I'm struggling to see such a case. I can't see that the inclusion of the imagery of the Cathedral in chapter 8 of the game would have persuaded anyone to buy the game, let alone be confused about endorsement from the Church. Throwing a wild stereotype in the air here, but surely the average player of this game is not likely to be the type of person that would recognise the building in question as Manchester Cathedral?

Special Provisions?

I got to wondering if there might be some special provisions buried in the laws somewhere that might give special rights to the Church of England. A brief search of our subscrition-based services for "copyright AND church" only finds the following unhelpful thing: the Crown owns the copyright in the eccliastical legislation passed by the General Synod. I've done some other general searching and can't see anything that leaps out at me here.

What do Film/TV companies do when filming in a building?

It's commonplace for TV or film production companies to enter into a premises agreement/release before filming inside a building. This is a matter of good common sense so that:

• The company can get access to the building
• The parties can agree the practical stuff about power, people, times and dates
• So that the building owner can get an assurance from the filming company that they will pay for any damage done
• So that the filming company can be sure that the building owner won't come up with a spurious claim for compensation in the future if the product of the filming becomes successful and generates loads of income.

I suspect that Sony created their virtual model of the Cathedral without going inside at all.

Conclusion

My conclusion is that the Church of England doesn't have a case. Perhaps it is trying to publically shame Sony into making a payment. On the one hand, you might say good for the Church. On the other,  threatening legal action without an obviously solid case is rarely a good idea.

Comments

[Andrew Mills]

The Times Online purports to have the full text of the initial letter from the Church to Sony at http://www.timesonline.co.uk/tol/comment/faith/article1917035.ece

[Tom Wazynski]

Excellent article I completly agree, another point in the case of defense of Sony is that one clause of the copyright act (can't remember which one) states that bulidings can be recreated in a 3D medium without permission. I am no laywer so I could have interpreted this wrong but this would seem as another get out for sony?

Plus in the margeting of the game the use of the church was never specifically metioned, yes they did state that the game was based on accurate 1940's locations in the UKbut the church was never used directly in the marketing. Therefore its hard to argue that the Church was used as an endorcement. As for giving a bad image to the church the game does the opposite, in the game it is expained by a character that the church had been used to treat the wounded in the great war and it served as a great importance.

I cannot see the church winning at court and if they do manage to squeeze sony for an money in the form of a donation then, i belive that it will outcome will leave the church looking worse than sony. The fact that they changed their stance from a appology to a donation shows that there main reason for the pursual of this is for monetary gain rather than any religous reasons and this could alos reflect bad for them in court.

[Gerard, Manchester]

this is an absolutely excellent read, someone should send this to all news stations around the world that are running this story

[Andrew Mills]

Thanks for the kind comments Tom & Gerard. After seeing the same story told time and time again I thought someone ought to give it a bit more analysis!

[Matt Wardman]

Nice article.

I disagree on a number of points, but agree that a legal challenge would turn on this:

>I suspect that Sony created their virtual model of the Cathedral without going inside at all.

If they didn't go inside, then this aspect of any potential case vanishes as you imply. However, I believe that Manchester Cathedral have signs in place about commercial photography (I phoographed the interior 2 years ago).

"Copyright in the building" is a red herring. Manchester Cathedral Chapter would not be so stupid as to try that.

"Trademark" in the building would be more likely, except that I don't it is registered, and it may not apply in these circumstances.

Clearly the building is recognised as Manchester Cathedral in the game - not least because the whole environment is reproduced - otherwise there would not be an issue.

Finally, could you distinguish between "Manchester Cathedral Chapter" who are in this dispute, and the general "Church of England".

Cheers

Matt

[Matt Wardman]

One further comment:

The Cathedral wants the donation for work to deal with gun crime - which seems fair enough.

[Andrew Mills]

Thanks for your comments Matt.

COMMERCIAL PHOTOGRAPHY
I have specificaly mentioned the provisions of section 62 of the Act, a provision that most people, I suspect, will be blissfully unaware. The fact that a Church or any building might say "no commercial photographs without permission" do not necessarily mean that the section 62 doesn't apply anyway. I guess that one argument might be that the Cathedral is not a public building.

TRADEMARK
The purpose of a trade mark in legal terms is to distinguish the goods/services of one organisation from another. In addition, a trade mark that indicates the nature of the goods/services is not generally capable of protection. Any trade mark protection, if sought, would be for a sign capable of graphical representation and not for the building as a building. Trade mark registration is for specific goods/services and not for "everything". A trade mark does not protect any aspect of concept or idea, just the particular thing registered.

I'll do some trade mark searching but strongly suspect that there is nothing relevant. In the absence of a relevant trade mark registration, passing off might be something to consider, but I've already addressed that as a weak case.

MANCHESTER CATHEDRAL CHAPTER/CHURCH OF ENGLAND
My apologies if I have the language incorrect here. By using "Church of England" I am intending to refer to whoever owns/controls the building and/or asserts the rights. The letter I mention in my first comment on this post seems to clarify the intitial position.

DONATION
If Sony were to make a donation, I agree that the suggested use would seem appropriate.

[Mona]

My familiarity with EU/UK law relies entirely on WIPO, which is incidentally how the protection of architectural structures came about. In the U.S., at least, that protection was not retroactive. None the less, I don't think copyright is the primary issue here because copyright of an architectural structure only prohibits the use of the architectural design in future structures or structural designs. If the

As for copyrighted works in works of art inside the cathedral, I haven't played the game so I am unsure as to whether Sony reproduced any of those images. The fair dealings exception is extremely narrow compared to U.S. law. However, if the use of those works constitutes an "incidental inclusion," then such work may not be protected.

Dilution/Tarnishing of a trademark (your pass through) is a more probable claim. But once again, I'm not yet familiar enough with UK law to make an educated hypothesis as to the outcome of that claim.

I think the problem you're missing is how loathe the entertainment industry is to allow any court, particularly any court outside of the U.S., to make a judgment on the merits of a claim concerning anything that's going to bring up the issue of video game violence.

There's far too much incentive for Sony to settle, and I can't see this going to court. Apart from the risks associated with the cost of litigation, and the possibility that such a case could become a platform upon which a judge could criticize game violence, Sony would be insane to challenge this unless the church demands an injunction that required pulling the game off the shelves.

It all depends on what the church wants as a remedy. If it's just money, Sony would be better served to pay up.

[Andrew Mills]

Thanks for the comment Mona. There is a provision in UK law about incidental inclusion (see section 31 of the Copyright, Designs & Patents Act 1998 - there isn't a short link to it by try going to http://www.statutelaw.gov.uk and searching on title of the Act). However, incidental inclusion seems pretty unlikely in this case.

As for the trademark issue, I cannot see where this goes. A building is not, generally, the type of think that one would seek to protect by registration as a trade mark. I have conducted trade mark searches against multiple terms including "manchester" and "dean chapter" to "manchester cathedral" and "church AND england" to try and find any registered rights that might be relevant here and I can't find any registered rights at all that might have effect in England.

I realise the issue of computer game violence is a huge subject and it is not surprising that the Cathedral's side of the argument so far stresses this rather than any legal position.

As for going to Court, the risks on an unsuccessful claimant are significant, especially because of the English rule of the loser pays. Again, seeking to bring an injunction is a massive step and given that hundreds of thousands of copies of the game have already been sold and there are tenuous legal grounds I cannot readily see any organisation willing to take the risk. Under English legal procedure, an application for an injunction has to be made quickly and clearly the balance is in Sony's favour here. Secondly, an application is going to involve lawyers costs of tens of thousands of pounds and a requirement to give an undertaking in damages. This means that an applicant has to give an assurance to the Court that if an injunction is granted (because "applying for an injunction", even if successful, only gives protection until a full trial can consider all the evidence) but later overturned, the claimant will pay to the defendant the damages associated with the wrongly-granted injuction. Can you image how much financial damage Sony would suffer if it was forced to stop selling the game? This is a very big dis-incentive for bringing a case and seeking an injunction.

[Eric]

Perhaps there is something in a breach of agreement argument - if access to the building was conditional that such access would not be for the purpose of commercial photography and the game required internal photographs to be made (I haven't watched the You Tube piece). On the south coast last year I saw a no commercial photography sign on the access to a public beach which I thought somewhat strange ...

[Andrew Mills]

Thanks for sharing your thoughts Eric. This is a good point and worth considering. The first problem in responding here is that we just don't know the facts. However, the first thing to consider is that is that there can't be a breach without and agreement in the first place and we have nothing to suggest that there was. If this was the case one might have expected the initial letter to Sony (referred to earlier in these comments) to have raised this as a very early issue.

The second point about access is more difficult. A matter of contract law in England means that in most cases you cannot impose contract terms after the event. I have not been to the church and do do not know if there are signs (but an earlier commenter has mentioned these). However, the Cathedral's website says that entry is free.

Actually, though, this is a red-herring because the provisions of section 62 merely refer to a "building" and the issue of "public display" only applies to artistic works that aren't buildings.

There are a couple of cases from 1908 and 1917 that might be relevant but the law on copyright has changed significantly since then and particularly with the introduction of the 1988 Act. Hard to see that a Court would follow law a case from a hundred years ago when the legislation was substantially amended in 1988. However, a similar provision does go back in the earlier legislation anyway.

[Tom Hennell]

Very interesting - and the most informative discussion on this issue that I have seen. I have put a number of questions.

A. Photography Policy

- there are indeed notices in the Cathedral regarding photography and digital images. These state that explicit permission must be sought from the Dean and Chapter, and that all copyright in such images remains with the Dean and Chapter. These are common stipulations for publicly accessible buildings.

Hence, I presume, that if the games developers did take photographs with permission inside the cathedral, then their further copying for the use of the game would clearly infringe copyright.

But did they take pictures inside the cathedral? I have sat through the YouTube run-through, and one obvious point that arises is the clear and exact depiction of the flooring slab design. This is highly suggestive in my view, as flooring patterns are rarely apparent from published architectural photos (which tend to look upwards not downwards). The only published source that I can determine that would allow this detail to be accessed would be the virtual cathedral tour commissioned by MindWave, and readily accessible on the web. There can be no question that these images are copyright.

- so if, as is most likely, the images in the game derive from MindWave's virtual cathedral project, can these be reworked without permission into a game, without infringing copyright?

- otherwise, the games developers may have themselves taken photographs without permission - and here I would welcome your comments. Clearly a vistor who breached the explicit photography policy of the propertyowners thereby becomes a trespasser - but what is the legal status of their photographs? Do these attract copyright protection, and if so, to whom does the copyright belong? Can the propertyholder restrain the trespasser from making commercial use of their illicitly obtained images?

B. Section 62

I am intrigued by your argument that a video game cannot in any circumstances infringe copyright in a building (if that is indeed your argument). That seems to me to be a rather wider interpretation of section 62 of the Act than is conventionally understood. For example, football videogames that use virtual realisations of actual stadia invariably, I believe, seek a copyright licence from the stadium owners. Are they wrong to do so? Could I write a game set in the new Wembley Stadium with no need to seek permission from the Football Association? Is it not a more likely interpretation that the protection of section 62 applies to photographs and pictures of buildings in public places, but that digital realisations of those buildings would infringe copyright under section 17?

C. The 70-year rule

As to the issue of which parts of the building fall within the 70 year rule, the Library annex fails (just), as Basil Champneys died in 1935. However the post-war reconstructions clearly would fall within the time period, and none of these were "slavish" copies of previous work. The architect for the reconstructions was Sir Hubert Worthington - who died in 1963 - and effectively included the whole of the North-eastern portion of the cathedral - especially the Lady Chapel and Regiment Chapel (both designs are by Worthington from the ground up). Cathedrals rarely attempt to restore major damage to the way it was - and certainly Manchester never has. However, on the run-through, the eastern portions do not seem to have drawn significantly on Sir Hubert's designs, so I suspect that copyright in these parts is not infringed. Sir Hubert did also reconstruct the pulpitum (the big wooden screen that is so prominent in the game) because the Victorian organ case that surmounted it (by George Gilbert Scott) was a complete write-off following the bombing. The screen panels are therefore medieval, the vaults Victorian, and the cresting of the 1950s.

On the other hand, the pattterned floor designs (yes those again) are, I believe, the work of Sir Hubert's successor as cathedral architect - Harry Fairhurst.

But does reproduction of the floor patterns in themselves infringe copyright?

[Andrew Mills]

Thanks for the detailed comment Tim. I'm going to be out most of today so will respond on this when I'm back in the office.