Splashing and the Law

In Wisconsin this is the Law:

7 Updated 09−10 Wis. Stats. Database
Not certified under s. 35.18 (2), stats.
Electronic reproduction of 2009−10 Wis. Stats. database, current through 2011 Wis. Act 8 and February 4, 2011.
Text from the 2009−10 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified
under s. 35.18 (2), stats. Statutory changes effective prior to 1−1−11 are printed as if currently in effect. Statutory changes effective on or after 1−1−11 are designated by NOTES. Report errors at (608) 266−3561, FAX 264−6948, http://www.legis.state.wi.us/rsb/stats.html
(10) EFFECTIVE DATE. This section shall take effect July 1,
1937, and shall not apply to any article manufactured prior
thereto.
History: 1979 c. 89; 1981 c. 390 s. 252; 1983 a. 189; 1993 a. 482; 1997 a. 254;
2001 a. 103.
134.34 Duplication of vessel hulls and parts. (1) In this
section:
(a) “Direct molding process” means any direct molding process in which the original manufactured vessel hull or component
part of a vessel is itself used as a plug for the making of the mold,
which is then used to manufacture a duplicate item.
(b) “Mold” means a matrix or form in which a substance or
material is shaped.
(c) “Plug” means a device or model used to make a mold for
the purpose of exact duplication.
(2) No person may use the direct molding process to duplicate
for the purpose of sale a manufactured vessel hull or component
part of a vessel made by another person without the written permission of that other person.
(3) No person may knowingly sell a vessel hull or component
part of a vessel duplicated in violation of sub. (2).
(4) This section applies only to vessel hulls or component
parts of vessels duplicated using a mold made after June 30, 1983.
(5) A person who suffers injury or damage as the result of a
violation of this section may bring an action in circuit court for an
injunction prohibiting the violation. In addition, the person shall
be entitled to actual damages incurred as a result of the violation,
reasonable attorney fees and costs, notwithstanding s. 814.04 (1).
History: 1983 a. 324.

 

:?: Would be interesting to know if the Wisconsin law has been enforced since 1989, and if so what the result was.

Does the 1989 US Supreme Court decision in Bonito Boats v. Thunder Craft Boats which invalidated Florida's anti-splashing law not apply to the Wisconsin law? http://supreme.justia.com/us/489/141/index.html http://www.law.uconn.edu/homes/swilf/ip/cases/bonito.htm
My understanding is that decision effectively invalidated all individual states' anti-splashing laws, but I'm not a lawyer and could be wrong.

 

So...?

 

I don't really understand the point of this thread but I'm not the sharpest knife in the drawer.

Laws are created, at some effort, to rectify a situation in a time of need. Times change, and new laws are created, at some effort, for new needs. The old laws are often not deleted/repealed and may stand for years, decades even centuries until somebody finds them and exposes their apparent rediculousness. Is this the situation here?

-Tom

 

Quick post then back to work--In many states and many provinces it is against a still on the books old law to hang your washed clothes out to dry on Sunday. To go one further A new law in many of the same prohibits even having a clothes line--Go figure

 

Isn't there some confusion in these laws between patent protection (which can only be valid for something novel) and copyright (which can protect specific shapes, designs, logos etc)?

The US legal and patent system seems to be in a mess, because I recently came across 5 patents for the same "invention", all of which were pretty close copies of an invention that was patented in 1874. As a patent can only be granted, and be valid, if the subject matter is novel (i.e. has not been seen in the public domain prior to the filing date) I really can't see how the generic shape of a boat hull (unless it genuinely is different and novel) can be patented (with the exception of some truly novel inventions relating to special hull characteristics).

On the other hand, the exact shape of a boat hull will always have copyright protection, and requires no filing or registration to be so protected. It is normal for copyright to automatically belong to the designer, although most will probably make a public declaration to this effect somewhere in the design paperwork or plans. Someone who takes a mould directly from another's hull and makes a copy will be in breach of copyright unless they have the specific agreement of the copyright holder.

I've recently had to clarify this as I've designed and almost finished a small boat and wish to put the design into the public domain. The odd thing I've discovered is that unless I specifically and publicly give up my copyright, in a formal statement that declares the design to be public domain (or, in modern parlance "open source") then it remains mine and anyone who copies it could be guilty of breach of copyright.

I obviously can't patent the design, because it's a fairly well-known generic hull form that goes back over 100 years, so couldn't possibly be described as novel.

Sometimes I think that the lawyers who make a lot of money from dealing with IPR very deliberately try to confuse what is a fairly simple concept. The fact that some Patent Offices around the globe have been complicit (or negligent) in allowing unpatentable concepts or ideas to be given imaginary patent protection has only compounded the problem.

FWIW, I would suggest that the state laws described above don't clash with the federal law on patent protection, as they seem to refer to breach of copyright.

Jeremy

 

if the law is state by state in the US then it would be mostly useless
you generally get no help from any other country to apply state law either only federal law.
So splash in Bahamas and sell in 50 states?

 

After reading DCockey's link, I think he's right. Federal patent law preempts state IP law and so if the design is not patented and protected under federal law then it cannot be protected under state law. Therefore I would guess that the Wisconsin law from 1937 is invalid and unenforceable.

 

I am confused as to how copyright laws apply to the design. Does this mean a boat design, even if it is only on paper, is in the public domain?

 

Copyright covers anything that you create, be it a design on paper, a piece of music, an image you create (even with a camera) or a physical object of a specific shape. If you design and build a boat then the exact shape of that boat belongs to you. If someone builds a replica by taking a mould from your boat, then unless you specifically give them permission to do so it's breach of copyright.

Enforcing copyright is pretty difficult though, the music, film and book industry are pretty much the only ones who pursue it vigorously, but the principle applies to anything that an individual creates.

Because it works in the opposite sense to patents (which can only be applied to something novel), in that copyright is automatically asserted with no action needing to be taken by the creator, it is wide open to abuse.

The internet has made such abuse far worse, because of the ease with which copyrighted material can be illegally copied to millions of people. Boat plans are not exempt from this and I believe that it is one reason why many designers who sell plans are reluctant to make them available electronically.

If you want to give your design away freely then you need to do so very specifically. Just publishing it may not be enough to prevent a copyright breach, although for all practical purposes it's often deemed to. This is one reason that the open source movement has very specific agreements drawn up to ensure that he originators positively relinquish their copyright and other IP and is the reason that I need to be specific about making it clear that the boat design that I'm putting in the public domain is free from any copyright restriction.

I think that the reason that copyright is rarely pursued in the courts (with the exception of the music and film industry) is because it's costly and any damages awarded are likely to be modest for people like boat designers. It's most probably the reason why some US states have chosen to reinforce copyright protection with state law, perhaps to turn a civil damages issue into a criminal one.

Jeremy

 

Copyright is a form of protection provided by the laws of the United States
(title 17, U. S. Code) to the authors of “original works of authorship,” including
literary, dramatic, musical, artistic, and certain other intellectual works.
Above is from the US Copyright Office website: http://www.copyright.gov/circs/circ1.pdf
There have been several international treaties on copyright which most countries subscribe to including the US, so the scope of copyright is generally the same in most of the world. Ability to enforce copyright in a foreign country depends on the laws of that country.

Copyright does not apply to functional objects. The lines, curves and text contained in a boat plan are subject to copyright. It's usually a violation of copyright to reproduce a boat plans without permission. Boats built to a particular plan are not subject to copyright.

I've never heard before this thread that the exact shape of a boat hull was subject to copyright. I'd be interested in more information about this.

The anti-splashing laws which several individual US states enacted did not "turn a civil damages issue into a criminal one". Rather they were intended to provide the ability to sue for damages in state courts rather than federal courts, and provide protection against copying and "splashing" beyond the limited or no protection provided by federal law. The 1989 US Supreme Court decision in Bonito Boats v. Thunder Craft Boats effectively invalidated these state laws.

 

A review of the US and UK copyright office websites finds that copyright applies to artistic works, including sculpture, and architecture. There are no references to it applying in general to shapes.
http://www.copyright.gov/circs/circ01.pdf
http://www.copyright.gov/help/faq/faq-protect.html#elvis
http://www.ipo.gov.uk/types/copy/c-about.htm
http://www.ipo.gov.uk/types/copy/c-applies/c-artisticworks.htm

The last link from th UK in the section about artistic work includes:
In the case of a drawing of an article to be mass-produced, there will only be copyright in the article made to the design in the drawing if the article itself is also an artistic work. This would have included something that could be called a work of artistic craftsmanship. However, design right protection might exist for such an industrially produced item even if there is no copyright. Applying for a registered design is another possibility.

 

A few months ago I researched various protections sometimes claimed as applying to boat design in the US. Below is a summary of what I found. Disclaimer: I am not a lawyer.

Utility Patent , 20 years. Must be applied for and granted. Most boat designs and elements of boat designs don’t qualify for a utility patent because they don’t meet the required conditions. Validity of a patent is only established through litigation. After 20 years the contents of a utility patent are public domain.

Design Patent, 14 years. Must be applied for and granted. Protects only the original aspects of the appearance and ornamentation of an object, not it’s functional aspects or construction. Validity of a patent is only established through litigation. After 14 years the contents of a design patent are public domain.

Vessel Hull Design Protection Act, 10 years. Registration must be applied for and approved . Designs which are covered by a design patent are not eligible for VHDPA registration. Covers the shape and the hull and deck if they are sufficiently unique. “Protection is afforded only to vessel hull designs embodied in actual vessel hulls that are publicly exhibited, publicly distributed, or offered for sale or sold to the public on or after October 28, 1998.” Does not apply to designs which have not been built and application for registration has to be made within two years of the first public showing of the hull. Once the 10 year term expires the design is in the public domain.

Copyright, term varies and for works created before 1978. and without copyright notice and/or registration there may be no copyright. Works created after 1977 do not require registration or notice. Terms for works which qualify for copyright are very long. In general copyright applies to “original works of authorship”. Artwork is covered by copyright to the extent it is non-functional. Functional objects are not covered by copyright. Boat plans which are original may be covered by copyright and can’t be reproduced without the permission of the copyright owner (other than within the fair use exemption). However the knowledge in the plans isn’t covered so boats can be built from copyright plans without infringing on the copyright.

Trade Dress, indefinite. Trade dress are the unique, visual, generally non-functional elements of a product (or its packaging which is unlikely to apply to a boat) which are identified with its source. Once rights to a trade dress are established they can last indefinitely. Registration is not required though there are advantages to registering a trade dress. I assume that similar to a trademark, trade dress has to be defended or rights to it may be lost. Trade dress appears to have been the primary basis of Hinckley’s claims concerning its “picnic boat” designs. Only certain elements of a boat’s design could constitute trade dress.

Trademark, indefinite. “A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.” The name of a boat design such as “Laser” or “Sunfish”, or of a manufacturer such as “Benateau” may be a trademark and if so can only be used by the trademark owner. However, a trademark is not a design so ownership of a trademark does not confer any rights to a particular design.

License Agreements and Contracts, term depends on the agreement. Private agreements between two parties which are only enforceable by one of the parties, and in general require agreement by both parties. An example would be a license agreement between a designer and a builder under which the designer agrees to furnish the builder with plans for a boat and the builder agrees to pay a fee, build only one boat from the plans, and not allow anyone else to build a boat from the plans. Presumably this type of agreement is what is meant by statements such as “buying a set of plans only allows one boat to be built”. A license agreement can also include a requirement that the plans cannot be transferred to another party without their agreement to the license terms. Someone who is not a party to the license agreement or contract cannot be forced to abide by its terms, nor can they require the parties to the agreement to behave in a certain manner. Museums and others who own plans can require agreement to a license agreement which may include building of boats to the plans as a condition of purchasing copies of the plans. However they cannot restrict the building of boats of the designs by parties who did not agree to the license conditions.

David Cockey
7 December 2010
Revised 31 March 2011

 

I take your point, but the act of copying exactly the lines of a hull, by taking a mould, has to be the same as copying exactly the lines of the same hull by taking them from the drawing, doesn't it?

In both cases it is the hull lines that have been copied, all that is different between them is the means by which the copy was made. As I understand it, even if a hull was laser scanned to copy the hull lines a copyright breach will still have occurred.

I very much doubt whether anyone has ever successfully argued such a point, though, as all it would probably achieve is wealth creation for lawyers...............

Jeremy

 

The Bonito v. Thundercraft decision spoke only of patents, not copyright, so I think that copyright is not relevant to the decision. Basically the court (unanimously) said that if you don't patent it you're SOL.

The reason copyrights and patents expire is that the system is designed to provide the original inventor to profit from the invention for a time, but after that time is up all ideas become public domain so that the society at large may benefit from them. Unfortunately the copyright / patent system has become perverted to a money making machine without contributing benefit to the society.