The PlayStation 3 video game Resistance: Fall of Man is in the news. Developed by the California studio Insomniac Games, and published by Sony Computer Entertainment America, Resistance is a first-person shooter set in an alternative history in which humans battle against alien invaders.
One of the levels features a battle in Manchester Cathedral, a building owned and operated by the Church of England. The Bishop of Manchester, Nigel McCulloch, is quoted by the BBC as saying, “For a global manufacturer to re-create one of our great cathedrals with photo-realistic quality and then encourage people to have guns battles in the building is beyond belief and highly irresponsible.” It is reported that the church is considering legal action against Sony. Canon Paul Denby is quoted in the Times: “I think they are going to be in for a surprise because we are not going to let this one go. One million people are visiting Manchester Cathedral through this game.”
There are two issues here. One is the morality or propriety of using a depiction of a real building in a work of fiction in a way in which the owners of that building might object to. I take a robust view on this: public buildings are part of our shared experience and are effective props by which a work of fiction can establish its setting, relevance and immediacy.
The second issue is the legal principle on which the Church plans to challenge Sony. What can this be? I can see two possibilities: some sort of intellectual property right (copyright, design right, or trademark), or else some kind of defamation.
Copyright in the buildings themselves is a non-starter. Buildings are not in general copyrightable: the Copyright, Designs and Patents Act 1988 says:
62.—(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.
In any case Manchester Cathedral is much too old (started in 1215; completed by the 19th century) to have remained in copyright. (They might have a case if artwork has been recently added to the cathedral and the game has copied this artwork, but this doesn’t seem to be the case.)
If the artists at Insomniac Games based their designs not on the buildings themselves, but on a particular depiction of the buildings, they may have infringed the copyright in that depiction. The BBC reports a theory along these lines:
So how did it manage to produce such a close replica?
One theory is that the company simply accessed the ‘virtual tour’ of Manchester Cathedral which is freely available to anyone on the internet.
If this speculation is correct, then the Church would have a case, but I think the studio would still have a defence, because facts are not copyrightable, only their presentation. In this case the appearance and plan of the cathedral are the facts, and using copyrighted images as a basis for determining those facts does not violate the copyright in those images. As long as the artists built their own models and drew their own textures, they may be in the clear.
Here’s a comparison of the game with the virtual tour.
(looking towards the altar
from a position near the tower)
|View from the cathedral’s virtual tour|
(looking the other way,
towards the tower and away from the altar)
The Times suggests this theory:
The Copyright, Designs and Patents Act 1988 contains the so-called “2D to 3D rule”. Designed to prevent architects’ blue prints being bootlegged by builders who could use them to build replica buildings it could also stop a games developer creating a fictional representation of a real site.
The rule referred to is in section 17 of the Act:
(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.
So this would apply if the studio had used copyrighted plans as the basis of their models (rather than carrying out their own survey or just judging it by eye). This looks like the most plausible legal theory so far.
Trademark law might be helpful to the Church, if they had followed the advice of the Archdeacon of Westminster, who proposed in 1999 "that the Church of England should trademark its churches and cathedrals". The Trade Marks Act 1994 says:
10. (3) A person infringes a registered trade mark if he uses in the course of trade a sign which—
(a) is identical with or similar to the trade mark, and
(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered,
where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.
It seems that the Church could argue that this law fits the facts of the case. But Sony could respond with arguments about whethere they have “due cause”, whether the advantage was unfair, etc.
What about defamation? It’s common in the US for photographers and film-makers to require the owner of a property being filmed to sign a “property release”, analogous to the “model release” that human subjects need to sign. The American Society of Media Photographers has an interesting article on the subject, in which they present two legal theories about why a property release might be needed:
Association. The first theory is that a person’s identity might be connected to the property. […] If the owner sees the use of the image as defamation of character, a lawsuit might be the response.
Conversion. The second theory is that there is an offense called conversion, which means that you used another’s property to your own personal gain without the owner’s permission.
However the authors go on to point out, “We know of no case that has ever settled those kinds of questions.”
I can’t find anything nearly so specific as this in the context of the law of England and Wales. So it would seem that the Church of England, if it embarks on a suit against Sony, would be breaking new legal ground. I can only hope that if they sue, they lose.