Thursday, May 15, 2008

An end to the knitting saga

I never knew knitting was so popular. Yours Truly had a strange day yesterday, being quoted in The Times, and interviewed in the Daily Mail. The story has travelled far, it has been reported in Wired, Down Under, and even on the CBBC Newsround site (you know you have made it when a story you broke gets reported on the CBBC). To top up a crazy day filled with knitting puns and forgotten Doctor Who episodes, the BBC itself invited me for an interview in E24, BBC News 24 entertainment programme.

The experience was bizarre to say the least. I was invited into the BBC studio in Edinburgh, which is located in a small building in Holyrood Road. I was expecting something bigger, but there were only two people there, and the actual studio was a table with some chairs and a picture of Edinburgh as the background. No staff, no cameramen, just an automated camera, instructions to talk to a plastic cup (literally), and this guy talking into my ear. The interview was over too shortly, and I probably came across as either an illegal immigrant passing off as a university lecturer, or as an over-intellectual geek who needs to get out more (note to self: DO NOT make nuanced legal points in an entertainment program). I felt a bit ambushed, as the person who followed me was a BBC Worldwide exec saying that they invited Mazzmatazz to contact them to reach an agreement of some sort. The interviewer said that Mazzz had just contacted them and had asked where she could get in touch, so everyone wins.

This is a good resolution to all involved I believe. Hopefully the fans can continue knitting Oods, the BBC is seen listening to fans, and we have a nice collection of Dalek puns to ponder. And of course, we do not get a clear legal answer of whether the written instructions for doing something constitute a separate copyright to the artistic work that gave origin to it. Ilanah at IPKat thinks that this could be considered analogous to software and source code. Quite an interesting analogy.

Did I just lose a week pondering Daleks and knitting? I DO need to get out more.

9 comments:

Michael said...

Thanks for taking some of the press heat from Becky and ORG. Am delighted at the coverage we managed to generate on the story.

But I'm not sure this is a satisfactory end to knitting-gate, in that any agreement the BBC reach with Mazz will be a one-off, whereas there is a need for broader change.

pangloss said...

OK Andres.. sit down.. get yourself a tequila.. you just got blogged by Neil Gaiman!!

http://journal.neilgaiman.com/2008/05/brief-trademark-ponders.html

Also good PR for ORG:)

Andres Guadamuz said...

*Faints*

Andres Guadamuz said...

Good point Michael. One of the things that I am going to push with this is the idea of fan licences for non-commercial use.

That should be my GikIII paper sorted for this year then.

pangloss said...

I did suspect that!!!

damn and I always wanted to do "Dr Who and the Law"!

Scott Wortley said...

Andres,

Doctor Who is actually pretty good at allowing fan published material for charity to go without problem on the copyright front. There is a novel - rejected by BBC books but privately published called Campaign where proceeds go to charity - and various anthologies (some of which support the Sudden Infant Death Syndrome charity patronised by Colin Baker). And of course the new series has been heavily populated by those who started in fan fiction/fan production days. The voice of the Daleks, Nick Briggs, was the DOctor in the fan-made audio-visuals production ( http://www.justyce.org/ )even guesting in the licensed comic strip adventures in Doctor WHo magazine as a "regenerated Doctor" in The Final Chapter and Wormwood, reprinted in Doctor WHo - Endgame(the fist volume of the eighth Doctor comic strips), and Gary Russell (now script editor) produced the series. And Mark Gatiss, Gareth ROberts, RTD, and Paul Cornell all wrote novels for Virgin when they had the licence for Doctor Who novels - Moffat wrote short stories for some of their collections; and Gatiss, Roberts, Cornell, and Rob Shearman all scripted stories for Big Finish (officially licensed stories) meaning that whent he show was brought back virtually all of the writing team had been involved in "fannish" activities.

There is of course the great Dalek controversy too which sheds further light on the copyright issues - with the Dalek survival book (which I can lend you for illustrative purposes if required for any presentation on Doctor Who and the law). Conveniently that case involved a copyright claim by Mr Fishman (the Fishmen having appeared in The UNderwater Menace in 1967 - see http://www.bbc.co.uk/doctorwho/classic/episodeguide/underwatermenace/detail.shtml ) and the judge making various criticisms of Terry Nation = including describing The Chase (the only Doctor Who story to feature The Beatles in person as well as its first appearance for Shakespeare and - pending a new audio out later this month/early next month - the only appearance of Abraham Lincoln: http://www.bbc.co.uk/doctorwho/classic/episodeguide/chase/detail.shtml ) as "memorably bad" (para 36) and a thinly veiled critique of Terry Nation approach to Doctor Who at para 49.

There's one other potential copyright/licensing issue that might blow up. The sonic screwdriver was created by Victor Pemberston - then script editor - in his story Fury from the Deep (1968). It is now heavily marketed and Pemberton gets not a penny, about which he is - understandably - a mite upset. Pemberton was apparently interviewed in the media last week (I've not found an on-line copy) indicating that he wanted to take this up with the production company!

Cheers

Scott

Simon Bradshaw said...

I wonder if the BBC has looked at its own legal archives, reminded itself of BBC v Pally Screen Printing (the 'Teletubbies' case) and realised that settling might actually be a very good idea.

In BBC v Pally, it was held that the Teletubbies were to be treated not as artistic creations but rather as product designs. This meant that the provisions of s.51(1) of the Copyright, Designs and Patents Act 1988 came into play, which mean that copying a product protected by design right does not infringe the copyright in the original product's design drawings. Crucially, Laddie J found that this meant that this included making new two-dimensional drawings from the three-dimensional product - in other words, if you reverse-engineer the product to create your own design, this new design document doesn't infringe the copyright of the original one. And since the evidence was that Pally's T-shirts had been copied from the Teletubbies themselves as seen on TV, not the BBC's original design drawings for them, s.51 applied and there was no infringement.

BBC v Pally was relied on by the late Pumfrey J in Mackie Designs Inc v Behringer, where a reverse-engineered circuit diagram was found not to infringe the copyright in the original circuit design. This case is particularly interesting as Pumfrey's reasoning on why a circuit diagram was a 'design drawing' within the meaning of s.51 equally applies to knitting instructions.

So, it seems to me that assuming the Ood or Adipose were treated in the same way as the Teletubbies by the courts, the BBC could not claim that a knitting pattern infringed copyright in either the creatures themselves or their original concept designs. Since Mazz wasn't producing actual products, there wasn't infringement of unregistered design rights. And even if the creature names had been trade marked, R v Johnstone makes it clear that use of a trade mark purely as identification to label an item is not an infringing act.

In short, I don't think the BBC had any sustainable IP claim and having realised this is now seeking to drop the matter as discreetly as possible.

mazz said...

Andres - I missed your interview sadly, but my mum and dad saw it and said it was very good - now there's praise!

I really cannot thank you enough for what you and ORG have done with regards to helping me out, and I for one will be putting forward the rights of the fans and promoting ORG when I do meet with the BBC to discuss matters further.

Scott Wortley said...

What view do you think the Beeb will take of the pub selling Doctor Who beers? For more info see http://www.behindthesofa.org.uk/2008/05/cheers-for-the.html

Best wishes

Scott