Q&As

Can a plastic toy super-hero figure, considered to be a collector’s item,  qualify for copyright protection as a sculpture?

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Published on LexisPSL on 27/06/2016

The following IP Q&A provides comprehensive and up to date legal information covering:

  • Can a plastic toy super-hero figure, considered to be a collector’s item,  qualify for copyright protection as a sculpture?

This Q&A covers UK law only. Artistic works are material objects that are visual images. Section 4 of the Copyright, Designs and Patents Act 1988 (CDPA 1988) deals with artistic works and includes sculptures. Sculptures are three-dimensional objects carved or shaped by hand and have included: toy soldiers, medals, coins and moulds for toasted sandwich machines. See the section on artistic works in Practice Note: Copyright—protectable works.

Lucasfilm Ltd and others v Ainsworth (Lucasfilm) didn’t just deal with the Stormtrooper helmet as a utilitarian object. In the action, Lucasfilm also claimed that the toy Stormtroopers which were subsequently produced (and which are reproductions of the Stormtrooper helmet and armour), were 'sculptures' within the meaning of what is now CDPA 1988, s 4(1). This claim was unsuccessful and the case went up to the Supreme Court (SC). The court considered that a toy figurine of this type would not qualify as a sculpture, under the artistic works banner, because it is predominately a toy, ie not a toy and something that might be put in a display cabinet and admired like the toy soldiers referred to in the Britain case (see below, not available in LexisNexis®).

The Lucasfilm High Court and Court of Appeal judgments (both were reversed in part by the SC but not on the Stormtrooper helmet/sculpture point) offer valuable guidance from the courts on the sculpture

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