Bruce Kirby: "It's the Boat That Matters, Not the Name"

I haven't seen a thread here on this topic. It's an important one, I think

I started one on the WoodenBoat Forum http://forum.woodenboat.com/showthr...-quot-It-s-the-Boat-That-Matters-Not-the-Name

In short, Bruce says he hasn't been paid by the builder for his Laser design. The story is longer than that.

What do you think? For what it's worth, I'm a big Bruce Kirby fan.

Thanks, Carl

 

I spent some time researching this dispute on the internet several weeks ago. It is a complicated situation and there may be a significant difference between what many believe is "right" and the legalities.

This is a dispute about royalties and contracts, who is bound by various contracts, who has the right to issue the plaques required to be on a Laser for it be accepted as a Laser class boat, the ownership of the construction manual, and the requirements for a boat to be a "Laser" for purposes of sailing in class and ISAF events.

Anyone can legally build a boat with exactly the same shape and sail rig as a Laser. They can "reverse engineer" the construction of the Laser and build their boat the same way. But what can't be done by just "anyone" is to call the boat a Laser or claim that the boat is legal to sail in Laser class or ISAF races.

 

Warning: sidetrack ahead....

I was curious to see what Kirby sails on his own time. Apparently it's a 35' fractional sloop with a centerboard, that's a tad on the fat side (28' lwl, 11 1/2' beam).

http://sailboatdata.com/viewrecord.asp?class_id=1571

 

I'm 100% behind Bruce Kirby.

 

it looks a bit like ICLA conspired with LPE in the US and those clowns at ISAF followed suite

 

My comments on Scuttlebutt re: Kirby and Laser

I felt compelled to comment on the Scuttlebutt discussion forum about this. They edited down my comments but left the salient points. However, what follows is my complete text and my feelings on the subject:

Regarding the continuing saga of Bruce Kirby and the Laser sailboat. My hat’s off to Bruce—keep at it, Bruce, and I hope you win!

Throughout this story, we have not heard from the builders, Laser Performance, as to why they stopped paying Bruce Kirby his royalties. Do they want to steal his design? No. If I have to guess, it is because the builders simply don’t want to pay any more. Builders never want to pay designer royalties. It is simply against their grain. After so many years of paying money out, they have finally decided that they can try to save a few bucks by cutting off the designer’s royalty fee.

What does a design royalty do? It authorizes the builder exclusive rights to build and market a boat using the designer’s name as pedigree. No one else gets to build them, only the builder who has secured the rights. It protects his product. The pedigree adds value to the boat which in turn puts money into the builder’s pocket with each sale. It also maintains a direct link to the designer for continuing advice. Stopping the royalty breaks the link and devalues the pedigree. And here it is all happening with the Laser, playing out right before our eyes.

A royalty in boat design is exactly the same as a copyright fee in book publishing, a copyright fee in song writing, or a patent licensing in any other field of endeavor. In book publishing, the publisher makes most of the money on sales and pays the author a royalty on every book sold. Why? Because it is the author’s work. The book would not exist without the author. The boat design would not exist without the designer. The concept of royalties is just about as old as dirt.

All boat designers dream of being able to earn a living from design royalties, but the sad truth is that this hardly ever happens. The vast majority of boat builders are too stingy and narrow minded—they just don’t want to pay royalties! It’s as simple as that. I can’t say it enough—they don’t want to do it! Boat design royalties never happen, that’s the rule, but when they do, it is a rarer occurrence than a blue moon, really. I once asked Olin Stephens if he ever had trouble collecting royalties on his boat designs. He said there were only two builders that ever paid all their royalties (it is not important who they are), and all the other builders he ever designed for were derelict royalty payers.

Therefore, I applaud Bruce Kirby in pursuing his case if for no other reason than to hammer home the fact that boat design is intellectual property that builders must pay for continuously for their exclusive rights to build and market the boats, created by the designer, without which there would be no boat to build.

Good on yer, Bruce!

Eric

 

This is the best site I've seen on the matter:

http://www.impropercourse.com/

And, Eric, I couldn't agree more with you.

 

Me too. Very well said, Eric.

For some reason, the designer's work is generally not seen as work at all. At most, it is perceived as a kind of pleasant hobby - creating fancy drawings while comfortably seating in front of a PC (or a drawing board, for nostalgic ones). For many persons the work still appears to be, by definition, something that takes a raw material and physically shapes it into a finished product. And that is the only effort which deserves to be payed, in the eyes of too many persons.

Let me go a bit off-topic and claim that this problem does not regard only the boat design. Intellectual workers and artists in general are having very hard times nowadays, due to almost exponential proliferation of affordable (or free) computer software for music editing, photographic design, web design, architecture, boat design, mechanical 3D drafting and many other creative activities. They give a false impression, to the happy owner, that once he masters the use of the software he is an artist. What does he need a web designer for? He has everything necessary for creating his own web sites. Why calling a photographer for that special occasion? With a $50 digital camera and a freeware photo-editing software he can make as many photos as he desires! Why paying a boat designer? With that Free***! software he can design a 60 ft powerboat with no effort and then build it with standard marine materials. Again, he will pay the required materials, no problem about that, but he will try to avoid paying for intellectual work. Because it's not perceived as work, as I said.

In a perfect society, this situation would IMO be the most democratic one we can imagine. Everyone has free or low-cost tools to do any task he desires, so everyone is free to express their maximum creative potential. But we are not living in a perfect society. The missing factor in the above situations is the education, or the knowledge. It doesn't come with the software.

And it is exactly this missing factor, the education, which has turned these awesome democratic tools into a double-edged sword. Think about today's music industry. The music editing software and low-cost audio hardware today allows virtually anyone to create music and to let the world hear their creations. But the overall quality of music inevitably has to go down. And it does. Not so long ago, musicians were people who studied theory and practiced daily for long hours, and over many years, before they ventured into composing their own pieces. Today it's all instant - a kid plugs in the mike and a midi sampler, turns on the music software and starts combining and mixing the samples. But he is not creating music. Just re-arranging what he has heard on the radio or in a disco, eventually creating a short and repetitive new sound. He lacks the education which comes from theoretical studies, long drills and listening of many different genres and existing pieces. The kid is doomed to remain in his little boxy musical world, unless he decides to invest time and effort into further education.

In case of boat design, the situation is a bit more complicated by the fact that the availability of freeware boat design software combined with the lack of knowledge about design and engineering of seaworthy vessels can lead to a potentially catastrophic end result, either from the economical side (a boat with no commercial value) or from the safety side (unseaworthy, unstable or structurally insufficient boat).

Ok, by this point this has become a rant, so I'm stopping it right here. The points I wanted to arrive are essentially two:
1) the intellectual work like boat design is, unfortunately, too often not being seen as a real work, and hence it is perceived as not worth the money the designer asks;
2) things will hardly change in the future, because of the availability of freeware software which give impression that it is easy to design a boat, so why spending money on a designer.

Cheers.

 

Thanks, guys. Daiquiri, your examples are poignant for me because my wife is a novelist, my daughter is a computer graphics artist and web designer, and my son is a photographer. We all face copyright and intellectual property issues everyday, and we realize quite readily that the artist is due his or her commission.

We are faced right now with purchasing some cover art for my wife's next novel, and we are gladly going to pay the artist his due for his effort. And in this endeavor, we are also faced with using software to electronically publish the book. The software is not necessarily easy to use because, like any software, you have to know how to use it, AND be skilled in the process and know how to make certain decisions in creating HTML-compatible books that will read well on E-readers. Amen to your comments. In fact, we are paying a computer publishing expert to set up the book texts for her, and he is worth all his time represented by his fee.

This all reminds me of the joke about the consultant who was hired to find out what was wrong with a manufacturing machine, and so after spending a day looking things over and figuring out what was wrong, at the end of the day, he puts an X on the faulty part and says "replace this part," and then later submits his bill for $10,000. The client comes back to him with a complaint that he did a day's work and "...all you did was put an X on the part to replace!? That's an awful lot of money for not very much work."

"Not so," says the consultant, "I'm the only one who knew where to put the X."

Eric

 

Disclaimer: I am not an attorney. The comments below are based on my research of law applying to boat design rights and related topics.

I completely agree with designers being compensated for their work, whether it be by agreed royalties, an up-front fee or other means. For the boat designer their ability to legally ensure this compensation depends, with few exceptions, on the contracts and other agreements they have reached with their customers. If the designer does not make sure they have properly protected their ability to be compensated then there are usually no automatic generic "design rights" they can fall back on.

If someone prints or creates electronic copies of one of Eric's wife's novels without her permission, Eric's wife can pursue damages based on her automatic ownership of the copyright for the novel. If someone uses one of Eric's son's photographs without his permission, Eric's son can pursue damages based on his automatic ownership of the copyright for the photograph. If someone sells copies of Eric's plans for a boat (outside of the fair use exemption), Eric can pursue damages based on his automatic ownership of the copyright for the plans. But copyright law does not cover what someone does with the information contained in the plans.

If someone builds without permission a copy of a boat Eric designed he does not have any ability to pursue damages based on copyright law. The design itself is not covered by copyright law as opposed to a particular representation of the design in a set of plans which is covered by copyright law. Similarly there is no ability to pursue damages based on patent law unless the boat is covered by a valid, un-expired utility or design patent. The ability to obtain such patents is limited and the patents have to be applied for promptly after the design is created. And there no ability to pursue damages based on the Vessel Hull Design Protection Act unless the design was properly registered within the required time, and the registration has not expired.

However, if Eric has a legally enforceable contract or agreement with the builder of the boat which covers the particular design in question, then Eric can pursue damages if the terms of the contract or agreement were violated by the builder. This is why the designer needs to be careful about the contracts and agreements they reach with a customer if they expect to be compensated beyond any up-front payments.

 

If someone builds a boat and promotes the boat using the designer's name without the designer's permission, then the designer may be able to pursue damages for the unauthorized use of their name. This is a complicated area which I have little knowledge of.

 

Yes, David, all well and true. And when pursuing legal actions for damages, one has to weigh the benefits of legal costs against the gains in potential income from the enforcement of the contract rights. Oftentimes, the dollars to be gained cannot compensate for the legal fees that would ensue. This happens if only small numbers of boats are involved. Is the headache of legal action worth having? On the other hand, in Bruce Kirby's case, I am sure the numbers of dollars involved is huge, and also at risk is the integrity of the whole class of Laser boats. Therefore, the enforcement of royalty rights is likely worth the cost of litigation.

Eric

 

Also because the price of a new boat is $6000...

 

Compensation for professional work.

I have always wished to be able to add to Tanton Yacht Design- Naval Architecture-Marine Engineering- New Construction etc..
the simple wording of Plumber, Electrician, Body Shop so that I can be sure to be paid.

 

Obviously an Engineer or artist must be compensated for their work. Compensated for unit one or unit 100,000.

Concerning the statement "Not so," says the consultant, "I'm the only one who knew where to put the X."

High fees charged for routine work...because I need the relevant signature....are troublesome.

Frequently I put yachts thru survey. Class or Flag. I recently prepared a yacht for survey. The Marine Engineer flew in at 0900, traveled to the boat, had a look around , collected the documentation that I had meticulously prepared, then jumped back into a taxi and boarded the 1200 flight back home. For this work he billed me for 8000 Euros !

This is Extortion. My client needed his signature.....he knew it.