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Mercury Estate Goes Ape over Copyright Row

Mercury Estate Goes Ape over Copyright Row

Published: 12.07.13 at 15:39

A Go Go Gorilla depicted wearing Freddie Mercury's famous yellow and white suit has been removed from display following a spat with the late singer's estate.

The "Radio Go Go" Gorilla is one of 120 painted gorilla sculptures making up a public art trail in Norwich. The collection, which includes the aptly named Blink Kong, will ultimately be auctioned off with the proceeds going to charity.

The Freddie gorilla had been on display outside the Forum, Norwich, but was removed when the late rock star's estate alleged infringement of copyright in the distinctive yellow and white attire.

According to Charlie Langhorne, director of Wild in Art (the company that supplied the gorilla glass-fibre canvasses), the Freddie Mercury estate, "...just said that they own the copyright on the suit and asked us to change it...To save any bother we will change it."

It's interesting to consider whether or not copyright actually subsists in the suit. Copyright will not protect functional items of clothing i.e. those mass produced and sold in the likes of Top Shop, H&M or any of your high street stores for that matter. These designs will often be protected by unregistered design rights. However, as this right only lasts for three years (whereas copyright generally lasts for the duration of the creator's life plus 70 years) it is unlikely to be of any assistance to the Freddie Mercury estate.

A garment could be said to be an original artistic work and thus qualify for copyright protection if it is a work of artistic craftsmanship. There is no hard and fast rule governing what will be deemed to be a work of artistic craftsmanship. And past cases have proved it very difficult to show that a garment is artistic. Essentially, the public must admire the thing for its appearance. Designs of simple shape and mass produced will often fail the test. However, if the work is a one off and created using a high degree of workmanship with intricate shape or ornamentation then the likelihood of copyright protection will be higher.

Arguably, Freddie Mercury's trousers are nothing more than a functional pair of trousers with a red stripe running down them. The yellow blazer too, while containing a number of button fastenings, silver studs and strapping, is predominantly of simple shape. It is difficult to say with any real certainty whether or not the suit would qualify for copyright protection. However, many fashion designs which have come before the court have failed the test.

It is also interesting to note the involvement of legendary Queen guitarist Brian May. The matter was brought to May's attention by his Twitter followers and he promised to investigate. He has since released a statement asserting that the estate were "quite within their rights" to ask for the gorilla to be removed.

May said that the Mercury Phoenix Trust "...try to safeguard Freddie's reputation, just as if he were still around."

He continued by saying that: "You have to ask yourself how you'd feel if suddenly people were making effigies of your dearly departed dad or son or brother, and you felt they were disrespectful...You'd want to feel you had some kind of a right to say yes or no, to protect his reputation."

Now without disparaging his argument, it is safe to say that copyright does not protect a person's reputation. That is the role of the law of defamation. A statement will be defamatory if it lowers a person's reputation in the minds of right-thinking members of society. The Defamation Act 2013 (DA) defines a "statement" as "words, pictures, visual images" etc. A gorilla sculpture could well fall within this definition. While the DA has received royal assent it is not due to come into force until later this year. Until then a defamatory statement is more commonly considered to be either spoken (slander) or published (libel) words. Even if the gorilla sculpture were considered to be a statement, arguing that a gorilla wearing your clothes lowers your reputation in the minds of right-thinking members of society is perhaps pushing it a bit. We still love you Freddie!

Furthermore, for a statement to be defamatory it must also be false. Surely Wild in Art is not asserting that Freddie Mercury was in fact a gorilla!?

Perhaps the estate would be better off pursuing a claim based on image rights. UK law does not provide for any free standing 'personality right' as such. However, the law does prevent those looking to pass off goods or services as if they were endorsed by a particular person. Essentially, if the use of a celebrity image or otherwise would be understood by the general public as an endorsement of that product or service then a claim of passing off may succeed. The main problem here is that the general public is less likely to assume that a product or service has been endorsed by a celebrity if they are already dead.

Talks between the respective parties are said to be ongoing with a decision on the future of the gorilla set to be made sometime next week. Maybe the best solution, as suggested by this author, would be for the estate to make a charitable bid for the Radio Go Go Gorilla, removing it from display and avoiding any further bad press.

Article by Joe Walsh

Photograph (some rights reserved) by stewils

 

Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.

Comments

  1. Go Go Gorilla returns!

    The Freddie Mercury estate agreed to a makeover and the Go Go Gorilla is now back on display.

    However, in the words of the artist the new gorilla lacks a "sense of fun".

    See it here - http://www.bbc.co.uk/news/uk-england-norfolk-23327454

    Posted by Joseph Walsh on 24.07.13 at 16:49

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