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Johnny Nietsneknarf wrote:

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Ted-- It's impossible years after the fact and without sight of documents and legal advice to be definitive about any of this.

Ah.  Excellent point.  So it's all hypothetical.  Nobody knows anything.  Good.  I'm glad we agree.

However, I know enough about IP law to doubt the certainty of your questions.

Oops.  Scratch that.  Here we go again.  (How can someone be "certain" with questions?  I'm asking, not stating.) 

For example, if Universal contracted with Hammer solely to distribute and to own video rights, they would have no direct claim on ancilliary IP. They would own only the rights to distribute. Period.

As the big Hammer buff you are, you ought to know:  Universal owned -- owns-- EVIL OF FRANKENSTEIN from the outset.  Period.  Excluding DRACULA and THE MUMMY, the films Hammer made for them in that period were essentially works for hire on a cost-plus basis.  Universal authorized then, financed them, owned them.  This deal was different than co-ownership deals with Columbia, Seven Arts, Fox, etc.

If Hammer's contract with Roy Ashton was so brief (and I have seen movie contracts that commit this error) to simply specify terms of payment, duration of work etc. (we're talking an age before work-for-hire contracts became standard) and not specify ownership of designs, UK law would definitely accord copyright to Ashton as creator. In any attempt to retrospectively claim ownership, the decades of failing to do so would count AGAINST Hammer in any court decision (as was sited when the Metropolitan Police tried to claim ownership of the police box design over the BBC with Dr Who).

Fine, it's a given in the UK-- or at least, law leans toward the individual most of the time.  (And I think it's a lovely thing the Tomahawk guys are looking after Mrs. Ashton).  But who owns the costume design?  Who owns the name "Hammer"?  Who owns the image of Oliver Reed, Christopher Lee or Kiwi Kingston?

There's also the question of context.  Licensing reproduction of drawings in a book is one thing; authorizing the use of a 3-D image from someone else's movie is something entirely different.  Again, read the Supreme Court decision above, which deals explicitly with this... and please buy a set of my official Roy Ashton Monster Coffee Cups.  I promise to send a healthy portion of my proceeds to Mrs. Ashton. 

That DD is based in the US is wholly irrelevant if the rights holder is in the UK and I feel 100% sure that Universal will not be the rights holder.

Ten bucks says Universal owns it all... except, perhaps, Ashton's original sketches.  As for where DD does business-- yes, it does matter, because there's the question of jurisdiction, and what set of laws would apply.  The things are made in Singapore, for instance; the designs are held by an individual in the UK, and the 'manufacturer' is a US citizen. 

Similar design (i.e. to Karloff) won't stand up anywhere. Most courts, trademarks and patents are very clear about identical and specific forms. If passing off was a crime, half the direct to video z-list films in LA would be impounded tomorrow. Which also applies to similar films, video games, books, visual designs etc. Copyright is specific form and you can check the us gov rights site about this.

Read the decision cited above.  Passing off is in fact considered actionable (ask Bud Spencer, a classic Lanham Act case), but that's beside the point.  This has nothing to do with "passing off," but is a archtypical case of a derivitive work.  Ashton's make-up on Kiwi Kingston derives-- in specifics, and in overall use within an authorized work for the copyright holder-- from an identifiable, copyrighted, trademarked and exploited image, i.e., Karloff et al., as the Monster.  Out of all Ashton's designs, this is his most derivitive, and really, just about the only one which does derive from anyone else's.  The sketches on his own wall show the progression-- and that he clearly began with the Karloffian image and progressed from there.  Why?  Because he had permission and presumably was told to.  Why?  Because Hammer was making a Universal film, and Universal owned the rights to the design.  Duh.

A derivitive work does not have to be identical to the original.  The make-up on Glenn Strange is not identical to any of the three Karloffs, but it clearly derives from them.  Herman Munster ain't "the Monster" Karloff played, but the make-up (with all its similarities AND differences) derives from the 1931 original.

The fact that the then Hammer rights holders have not objected to the Greasepaint & Gore book being published without a Hammer license is itself evidence of the copyright position. Or it may be deemed that potential legal action would not be worth the cost given the low revenues involved.

More likely the latter.  The fact that no one at Hammer-- which has changed hands four times since Ashton nearly 50 years ago-- has noticed or cared to investigate is scarcely proof of anything.  Some companies look at books about their works as good publicity; so it has been consistently with Hammer.  Other companies, such as Toho, do not even allow a single photo to illustrate a book or magazine on Godzilla without a ursurious payment.  Others, like EON, will insist on editorial control and opt to refuse photo rights if they don't get it.

There's no dispute that DD should not have made the COF doll or used the Hammer name...

I'll point out that Dick Klemensen, who has probably done more to promote Hammer than anyone in the world, briefly re-titled his magazine Little Shoppe of Horrors "The Hammer Journal" for two issues.  Roy Skeggs (and perhaps even Michael Carreras-- it was a long time ago) was quite displeased, because it implied a direct connection to the company, which would then open the company up to potential litigation, responsibility for editorial content, etc.  Dick reverted to his original title and all was well.    

As for doing a CURSE OF FRANKENSTEIN likeness-- eh.  They wouldn't be the first.

 ... but if you feel so sure of your position with respect to the Ashton Estate, put up or shut up. Stop being an armchair lawyer. Write to U and Hammer (as I did regarding DD and Ashton) and let's all see how far you get.

I know Hammer is aware of the situation.  Universal can figure things out for themselves.  I don't CARE who owns the bloody designs.  I just like the discussion.