|Is this a sculpture?|
"38. In the courts below as in the parties’ written and oral submissions in this Court, the argument has centred on the right approach to three-dimensional objects that have both an artistic purpose (of some sort) and a utilitarian function (of some sort). ... The appellants’ printed case gives some world-famous examples: the caryatids which form part of the Erectheion at Athens; the Medici tombs in the sacristy of San Lorenzo in Florence; the Trevi fountain in Rome. These seem to be rather special cases, not because of their outstanding merit but because they all have a strong architectural element, and the fact that a work of architecture is functional does not disqualify it from copyright protection. Other artefacts mentioned in the case, such as the Ribchester helmet in the British Museum or a decorated medieval suit of armour, would come more naturally under the head of works of artistic craftsmanship, together with fine furniture, musical instruments, silverware and ceramics. But the appellants have made clear that it is no longer part of their case that the Imperial Stormtrooper helmet was a work of artistic craftsmanship".
39. Instead, the appellants contend that the helmet had no practical function at all. Their case is that it is sculpture because its purpose is wholly artistic ...:
“In the present case, the question of functionality does not arise, because the articles in question have no functional purpose whatever. The Stormtroopers’ helmets and armour did not exist in order to keep their wearers warm or decent or to protect them from injury in an inter-planetary war. Their sole purpose was to make a visual impression on the filmgoer. They are therefore artistic works".This is the argument which was rejected by the trial judge, the Court of Appeal and now by the Supreme Court itself. As the Court observed:
"44. It would not accord with the normal use of language to apply the term “sculpture” to a 20thIn any event, weight must be accorded to the opinion formed by the trial judge, who reached his decision on the basis of a long and pretty well exhaustive pursuit of the subject in which a great deal of evidence was submitted and reviewed by him.
century military helmet used in the making of a film, whether it was the real thing or a replica made in different material, however great its contribution to the artistic effect of the finished film. The argument for applying the term to an Imperial Stormtrooper helmet is stronger, because of the imagination that went into the concept of the sinister cloned soldiers dressed in uniform white armour. But it was the Star Wars film that was the work of art that Mr Lucas and his companies created. The helmet was utilitarian in the sense that it was an element in the process of production of the film".
Is it right to bring the criterion of utility into the determination of whether a work is a sculpture or not? And is a question of either/or, or cannot a work be both functional and aesthetically arbitrary, creative and deserving of protection? Readers' opinions are invited.
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