Sony - And The Battle Of Manchester Cathedral

Games creators, online authors and publishers, in fact everyone involved in the South West’s burgeoning IT industry, would do well to watch how the row between a Japanese electronics giant and the Church of England unfolds.

When Sony’s experts wrote the Playstation game “Resistance: Fall of Man”, they obviously thought they were on to a best-selling winner, but it seems no-one anticipated that the battle scenes set inside Manchester Cathedral would develop in to a battle of wills outside the gaming console.

By using the interior of Manchester Cathedral as a backdrop for a killing spree, the game makers have attracted the wrath of the Cathedral authorities, and their dismay and anger has been well documented over the last few days.

Most people probably agree that the relevant scenes of mayhem and death are in pretty poor taste, and no doubt there are many who agree with the demands by the Dean that Sony should apologise and make substantial donations to the Cathedral’s education department and anti-gun campaigners.

But to the lawyer, the affair raises some tricky issues, and if the Dean and the company cannot work out a settlement, the question arises as to whether the Cathedral could bring a legal case which has a good prospect of success.

The obvious starting point would be for the Church of England to rely on intellectual property law. In the absence of a trade mark or a design right, it is likely that that the Cathedral’s lawyers will have been looking at infringement of copyright.

But will copyright assist them? Has Sony infringed the Cathedral’s exclusive rights in “original literary, dramatic, or artistic works” (to quote from the Copyright Designs and Patents Act 1988)? Without knowing the sources for the game’s interior images, it is difficult to be sure, but at first blush, an infringement of copyright claim does not appear particularly attractive.

Perhaps the Dean’s best course is to rely on the Common Law remedy of “passing off”. In a classic decision handed down in 1990, the House of Lords held that:

• if a complainant has a reputation or goodwill in the “get-up or indicia in question”;

• if the subject of the complaint has practised some form of deception on members of the public by means of some misrepresentation; and

• if the complainant has suffered or is likely to suffer damage or injury to its business or goodwill,

then the complainant can seek an injunction and claim damages on the ground of passing off.

If the Cathedral authorities were to argue that the game implies that they had cooperated with Sony, and in particular, had given their consent to the interior of the Cathedral being as the backdrop for gun battles and killing, then there seems no reason in principle why they should not argue that Sony is guilty of passing off.

But there is a fly in the ointment for the Dean and his colleagues. Is a religious institution likely to be able to prove that the game has resulted in their goodwill suffering damage or harm?

If the Church of England were operating a business from the Cathedral, perhaps it could. But given that the primary objective of the Church and the Cathedral is spiritual rather than commercial, is this a test they could satisfy?

This is not the place to analyse what is, or is not, meant by ‘goodwill’, but it is easy to see that in any legal dispute, both sides would concentrate on this essential element, and argue their corner as strongly as possible. Who would emerge victorious is a moot point, because goodwill is generally regarded as a commercial asset.

But if the Church and Sony are unable to settle their differences amicably, and the dispute moves from the oak pews of Manchester Cathedral to the oak panelling of the Royal Courts of Justice, what we can expect to see is a real-life battle royal.

And surprising though it may seem, events unfolding in Tokyo and Manchester could have far reaching implications for those involved in the creative industries in our part of the world.

Published 12/06/2007.