Additionally, there is a significant undercurrent of speculative copyright claims, which are sometimes difficult to distinguish from legitimate ones. This puts the indie game designer in a precarious position.
Pastiche for Profit
There is undoubtedly an art to trying to pastiche popular designs for commercial profit.
I first noticed this when a young lad, after getting two records by easy-listening legend Geoff Love & His Orchestra. In 1978, mad on sci-fi and spy movies, how could I resist the charms of Star Wars and Other Space Themes?
This album's cover is a masterclass in trying-not-to-get-sued. (Although one blog suggests that potential litigators may have left them alone anyway, due to feeling sorry for the publishers after hearing the slightly dodgy cover versions of certain tracks!) The Barbarella image is suprisingly un-adjusted, but I'm guessing that the Tardis is "generic police box" enough to slip through.
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| (top) Matt Jefferies' Star Trek USS Enterprise (middle) Star Wars poster by Tom Chantrell (bottom) Brian Johnson's gorgeous Space:1999 Eagle Transporter |
As a youngster (and burgeoning pedant) I was bemused why the spaceships were "wrong" and asked my Grandad, who explained that "they can get into trouble for copying the spaceship so they have to make it look different".
A few years ago I was amused to notice this cover for a Big Finish Doctor Who "Tsar Wars" audiobook, clearly paying tribute to the Geoff Love album cover.
I soon learned that this was a common issue. I also had a copy of Big Bond Movie Themes, with cover by Tom Chantrell (who'd also painted the official Star Wars poster shown above). However, on a trip to the local Tesco record section I was shocked to discover they'd (shoddily) amended the cover with James Bond facing backwards! I'm guessing that somebody objected to a recognisable Roger Moore (and other faces) on the cover; either that or Music for Pleasure's legal team got a little edgy.
Further research reveals countless other examples of this, like the one below:
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| (top) The Close Encounters images are identical to the originals, but presumably these are considered generic enough. (bottom) Roger Murray-Leach's Blake's 7 Liberator underwent a number of revisions for this cover. |
A subtle combination of vagueness and threat
On the Retail Week website, IP specialist Simon Bennett gives his opinion on copyright infringement in fashion:
"The test in deciding whether a copyright infringement has occurred is whether a substantial part of the original clothing has been copied. This is a qualitative and not quantitative test and there is no fixed criteria to be guided by. The idea that making seven changes to a piece of clothing will be sufficient to avoid copyright infringement is an urban myth.”This raises an important question: how much can you alter a design before it is unrecognisable as the original? When using pastiche, it's vital that the original source is evident. How can something be recognisable and unrecognisable at the same time?
I think most of the album covers above get away with it, which shows that it's possible without losing the core theme, so long as it's obvious that the intent is to deviate from the original design. That way it's still possible to keep key features (like with the Enterprise and Liberator) and some core design features.
Another trick is to use generic items in context. For example, a picture of a uniformed pilot on a sci-fi TV & film album is suggestive of Thunderbirds.
Being innocent isn't enough
Finally, on a more cautious note, it's worth remembering that being innocent isn't good enough -- a designer has to also try to create enough distance to avoid any potential claim. Regardless of whether infringement has or hasn't taken place, any legal proceedings can be expensive & stressful, and professionally embarrassing.
I was reminded of this recently when watching a biopic of Joe Meek, producer of the famous music track Telstar, which showed the emotional toll after being sued for alleged plagiarism. Meek had made matters worse by failing to respond promptly and was eventually found innocent shortly after his suicide, but the experience was clearly an unpleasant one.
So, overall, I feel that it's possible to walk a tightrope of pastiche for profit, but there's a vital need to be careful when doing so.