These are the kinds of stories that make me pull my hair out in despair at the way in which people toss around nonexistent intellectual property rights when they dislike someone else’s portrayal of them. It shows why robust trademark fair use rights are so important (which, no coincidence, is the topic of my writing project this summer).
The PlayStation video game “Resistance: Fall of Man” apparently includes a shootout inside Manchester Cathedral. The extremely violent first-person shooter game involves humanity’s desperate counterattack against invading aliens. The Church of England objects and, according to the BBC, is “considering legal action.”
The reported exchange between Sony and the Church demonstrates the disconnect between the two sides:
The company said in a statement: “Sony Computer Entertainment Europe is aware of the concerns expressed by the Bishop of Manchester and the cathedral authorities… and we naturally take the concerns very seriously. Resistance: Fall of Man is a fantasy science fiction game and is not based on reality. We believe we have sought and received all permissions necessary for the creation of the game.”
The firm said it would be contacting the cathedral authorities on Monday “to understand their concerns in more detail”.
But the Church said Sony did not ask for permission to use the cathedral and has demanded an apology and the removal of the game from shop shelves – otherwise it will consider legal action.
Sony claims it sought all necessary permissions for the game. Under U.S. law, it did — because there isn’t any permission necessary for depicting the cathedral in a fictional game. If there were, then the chilling effect on all kinds of fiction (especially movies) would be alarming. Make-believe events could not be set in real places unless those with control over the locales approved of the message. (I say “U.S. law” here because, although I don’t know of any, there may be some oddity of U.K. law that gives the Church some viable claim.) The misconception that Hollywood’s clearance practices represent requirements of trademark law is widespread; Wendy Seltzer spotted the Wall Street Journal making a similar error last year.
Not that companies don’t try anyway. Notorious recent examples include a suit by Caterpillar seeking to enjoin the Disney video George of the Jungle 2 because a bad guy drove a Caterpillar bulldozer to destroy George’s home (or something like that) and a suit by a garbage disposal maker whose product mangles someone in the NBC program Heroes (although it was the cheerleader, so of course she healed immediately). Still another case involves the slip-n-slide, as Marty Schwimmer explains here.
I understand and even sympathize with the Church’s motivation here. There are statements in the BBC story about the Church’s work against gun violence and so forth. But there must be no trademark right against clearly fictional portrayals of one’s image.
Update: Bill Patry considers the copyright issues here; from this account it seems unlikely that either UK or US copyright law give rise to any claim either (although if the building were recent, the analysis might go differently). Also see Trademark Blog here and IMPACT here for further discussion.