23 June 2016

Should Sky be a limit? Where creativity and commerce collide


An odd and slightly discouraging story emerged this weekend from the world of video games. To those of us excited by these things, news about the forthcoming PS4 game No Man’s Sky is usually greeted with a nervous sucking of the teeth given that the game has already been delayed once. The news on the 17th June, however, caused something more like a jaw into breakfast moment when Sean Murray, the game’s lead designer, tweeted:

Sky plc, it seems, does indeed ‘own’ the ‘sky’ and routinely challenges anybody who would seek to use ‘sky’ in the name of a product. They recently stopped Microsoft from calling their cloud based storage ‘SkyDrive’ (it’s now called ‘OneDrive’). They have been backed up in their ‘stupid legal nonsense’ by the General Court of the European Union who last year issued a judgement saying that ‘there exists a likelihood of confusion between the figurative and word sign SKYPE and the word mark SKY.’ It means that Microsoft, who own Skype, are unable to register a trademark for their internet voice chat and messaging service in Europe despite the fact that you’d have to be living on the Dark Side of the Moon (copyright, 1973, P. Floyd) to think Skype has anything to do with the satellite broadcaster.

In the world of branding, this kind of low level but toxic dispute is nothing out of the ordinary. Protecting trademarks has become big business. Yet the case of No Man’s Sky is peculiar because the game itself was never meant to be big business.

The game is being made in Guilford by a small team at Hello Games, an independent developer who are part of an increasingly successful world of video game production in which licensing agreements, superstar voice actors and cutting edge technology are sacrificed for creative control. No Man’s Sky is the product of creative talent who wanted to do something different and, when the gaming community first saw what they were doing, we immediately fell in love with their vision of a new kind of ‘different’.

The excitement around No Man’s Sky is understandable if you’re of that generation who feel that arguments about Europe are petty compared to our dreams of space. The game’s visual style deliberately evokes the covers of golden age science fiction novels and its promises kindle the excitement experience by anybody who has been moved by Roy Batty’s final words in Blade Runner: ‘I’ve seen things you people wouldn’t believe. Attack ships on fire off the shoulder of Orion. I’ve watched c-beams glitter in the dark near the Tannhäuser Gate.’ No Man’s Sky offers the chance to explore an entire universe in which there are over 18 quintillion unique planets.

Now, in a universe of 18 quintillion planets, there are probably going to be quite a few that have a sky, which, of course, begs the question: do all of those skies belong to Sky? Probably not, so why should the interests of a huge corporate broadcaster be allowed to interfere with the creativity of a small team of software developers? Sky obviously have a right to protect their product but one must surely ask how far we must all be protected from this kind of aggressive litigation. Sky was originally BSkyB, which was clearly a constructed name and therefore it would seem quite reasonable to trademark. They have gradually shifted to identify themselves as ‘Sky’, but the word ‘sky’ is not itself an act of primary creativity. It already existed in our language and it is a word that expresses something quite fundamental about our environment. Accordingly, the creators of No Man’s Sky surely had as much right to include ‘Sky’ in the title of their game as, say, Katherine Mansfield when she wrote the poem ‘Across the Red Sky’ or Emily Dickinson with ‘There Is Another Sky’ (perish the thought). Why should young creators in a field entirely different to that of TV broadcast be subjected to even a single day of trouble, let alone three years of ‘secret’ negotiations? Where might this kind of litigation end if left unchecked? How is the word ‘sky’ any different to ‘air’, ‘water’, ‘light’, ‘dark’, or even the definite article?

There will, no doubt, be lawyers who can explain this better than I could ever hope to but, surely, there must be some things left beyond the realm of trademarks; words and concepts that evoke all manner of common human feelings. Sky plc have clearly been successful because there is an argument contained in trademark law that makes allowances for situations in which common names adopt a secondary meaning. For example, in the UK at least, people routinely say ‘turn on Sky’ even if they mean, for example, BT or Virgin. It’s the same as when people say ‘Hoover’ but mean vacuum with a Dyson. There is not, as far as I know, any intention to remake the Lewis Gilbert’s classic film about Douglas Bader in the near future but it’s perhaps understandable why. ‘Reach for the Sky’ no longer evokes memories of the Battle of Britain and sounds more like a request to stretch for the TV remote (or that, I assume, is how Sky would see the threat of a potential remake).

The success that Sky have been having in protecting their three letters suggests that this won’t be the last example. But where does the law end and common sense begin? When does a corporation step into a space that should rightly be protected for the public? ‘Sky’ has been in titles of our creative endeavours long before the communications satellite was even conceived by Arthur C Clarke in 1945. It was even included his own collection of short stories published in 1958, The Other Side of the Sky.

But perhaps that’s the trick that Hello Games have missed. Is it too late to license the title The Other Side of the Sky from the Clarke estate? Then this most ridiculous of litigations could have had a pleasing circularity: a game lovingly influenced by the golden age of science fiction, some of which was written by the author who gave his name to the Clarke Belt where the world’s geostationary communications satellites are found, being taken to court by a company whose very existence relies on the technology that Clarke made possible. If Arthur C Clarke had never dreamed big about the sky, then Sky might never had a chance to be so small minded. Because when it comes to our right to use our language, surely it’s better if the sky really does remain as no man’s ‘sky’.

David Waywell writes and cartoons at The Spine.