I’ve loved Lego since I was a little kid. I haven’t really counted, but I’m guessing I still have (in large crates in my garage) somewhere around 300+ Lego sets of varying size. There’s something about allowing your creativity to roam that really interests me. And as a company, the Lego Group has also been of keen interest from an intellectual property perspective ever since they started becoming sticklers about calling Lego blocks “Lego Bricks and Toys”. But I think they’ve crossed the line recently with a “rejection” preventing the mock-rock group Spinal Tap from including a Lego-brick-based stop-motion video on their latest DVD.
I use the word rejection in quotes in the prior sentence because I don’t think that the Lego Group had any rights on which to make their claim. Per the article, Lego Group claimed copyright over the figures themselves (known in Lego parlance as a “minifig”) whereas Spinal Tap’s IP lawyer clearly states that they weren’t intending to show the Lego Group’s logo or use the word Lego anywhere in the DVD. Copyright protects written and visual works embodied in a tangible medium of expression. So I’m trying to figure out how the Lego Group thinks that they have a copyright over the minifigs themselves. I just don’t see it. Even from a search at the US Copyright Office, what I see are a slew of Lego registrations over the various books, stories, videogames and logos. I also see one deemed a “sculpture”, which I can only assume is a large version of one of the Lego minifig. But then the copyright would only cover that sculpture itself – not necessarily every little conceivable permutation of Lego minifig made possible by the myriad tops, bottoms, heads, hair and accessories available.
But even assuming that Lego holds a copyright in the general design of a Lego minifig, would the use for this DVD not qualify as fair use? I’m not sure it would – it’s parody, but not of Lego… it’s for profit… it “takes” the entire work. OK. Fair use is out. (Which blows Spinal Tap’s attorney’s idea away, too.)
So if the minifig IS registered, yet is distributed 4 billion times (per their company profile)… without any kind of licensing document attached to it… by a company that zealously protects its intellectual property rights… leads me to believe that even the Lego Group knows that they’re on shaky ground. [Interestingly enough, their company profile also tells the story about the company receiving a patent for their “Lego System” in 1958 – which would have long since expired. In the US, usually (but not always), intellectual property is protected by only one type of protection. You don’t get to gain a copyright after your patents run out. Either it’s a tangible, useful good… or it’s a work of art.]
All in all, I think Spinal Tap gave up WAAAAAAYYYY too early on this one. What’s next? Do recording artists need the permission of their guitar manufacturers (which, btw, are covered by copyright by some designers) to play their guitars in their videos? Of course not. The guitar manufacturer still holds copyright – but they gave UP the right to restrict where it was played in order to sell the guitar. Same is true for the Lego Group.
Anyone else wanna’ weigh in on this?