In a piece on UK consumer site Spong, Partner and Head of IP&T at lawyers Freeth Cartwright LLP Andrew Mills has argued that the Chruch will have a hard time building a case against Sony if it chooses to take legal action relating to the recent Resistance: Fall of Man controversy.

His thoughts read as follows:

“This piece looks at the key legal issues around the current dispute between the Church of England's and Sony for using (without permission) a building allegedly similar to Manchester Cathedral as a setting for Sony’s PlayStation 3 game Resistance Fall of Man. The Church is asking Sony to make a donation to charity by way of contrition..

“So, what rights might Sony have infringed here?

“The obvious starting point is Copyright, a right that comes about automatically and gives its owner the right to stop people copying.

“Section 4(b) of the Copyright Designs & Patents Act 1998 (“the Act”) specifically provides that a work of architecture being a building is a type of artistic work capable of protection by copyright, but one or two points need addressing. Copyright in artistic works only lasts for 70 years from when the creator dies or if that isn't known, 70 years from the work made.

“Under section 65 of the Act, reconstructing a building doesn't infringe the original copyright. The Act also states that copying an earlier work does not give rise to a new copyright.

“Manchester Cathedral has been around for centuries, and had been added to and altered throughout its history – has the copyright run out ? What elements of the building design were created between 70 and, say, 140 years ago and weren't simply reconstructions?

“So, if there IS any copyright, does the Church own it ? I obviously don’t know the answer to that at this stage, but I can say that paying someone to design and build a building for you doesn't of itself mean that you own the copyright in that building.

“Sony is also likely to point to section 62 of the Act, which says that copyright is a building is NOT infringed by making a graphic reproduction of the building. Based on this, Sony could have a good argument for saying it did not need the Church’s permission, and the Church can’t therefore have any grounds for complaint.

“To succeed on this claim the Church would have to show that:
• the visual image of Manchester Cathedral has a significant reputation in the minds of the public (as opposed the general image of a generic church)
• Sony have somehow traded on that reputation in selling the game
• members of the public have bought the game on the mistaken belief that the Church had somehow endorsed the game
• the Church suffers damage to its reputation as a result

“Would the inclusion of the imagery of the Cathedral in the game really have persuaded anyone to buy it ? Was there really scope for confusion about endorsement from the Church - how many players of the game would recognise the building in question as Manchester Cathedral ?

“I got to wondering if there might be some special provisions buried somewhere in the statute book that might give special rights to the Church of England. I haven’t found any.

“TV and film production companies often enter into a premises agreement/release before filming inside a building. This is simply common sense, as it allows the production company and the owner of the building to agree vital issues such as access to the building, times and dates, provision of electrical power, compensation for damage and so on.

“I wonder if Sony created their virtual model of the Cathedral without even going inside at all.

“It’s hard to see how the Church of England can make a case. Perhaps it is trying to shame Sony into making a payment for a good cause and you might say “good for the Church”. However, threatening legal action without an obviously solid case is rarely a good idea.”