Historic ship model plans/ copyright

If I build and sell a basic, sailing, historic ship (Archetect's tank/sea test) model from plans from a book or internet, is there any danger of copyright infringement? For example, but not necessarily my choice, The America's cup vessel "America" or the French pilot cutter "Jolie Brise".

As a matter of history: " Two timber sailing ships built from the same design (sister ships) by the same builder, will have differences in their hulls sufficient enough that sailing qualities can differ significantly" (American Fishing Schooners 1825/ 1935, Howard I Chapelle, copyright 1973, 48 years ago)
The Canadian "Bluenose" was built somewhat differently to her plans.

In all of the examples above, the plans are over 100 years old. Can these plans be included in the sale, or would they then constitute a copyright infringement? What about the names of the vessels? Just trying to keep it honest. D. Van Gieson Meyer, Commonwealth Shipwright/ Design, Australia

 

I can't help with the answer, but I hope the OP won't mind me adding a related question of my own.How long do the rights of a British designer last for?Boat design seems to slip through the cracks of copyright laws and I am unsure whether the definition of a work of art could be applied to a boat design.I have certainly seen a good number of very artistic boat designs and some of the actual drafting work is utterly beautiful.I am curious because I wouldn't want to embark on a model building project without a clear conscience and some of the designs I find interesting fall into the gap between having a designer still among us and not coming from a time so long ago that any possible copyright would have expired.Any information would be welcome regarding the British position but I imagine people elsewhere would have similar concerns and might appreciate a better understanding.

 

You can buy detailed ship plans from the Smithsonian, the only legal statement I have seen from them is (we take no responsibility if you build from these plans) .

 

UK law on design rights for objects which are not artistic: P-15: Designs and design rights :: The UK Copyright Service https://copyrightservice.co.uk/protect/p15_design_rights My understanding is boats are generally not considered artistic objects in the UK, but that is just my understanding.

 

Disclaimer: I am not a lawyer and the information below is not intended as legal advice. The information below are based on research into United States law.

For the US I have never found any legal basis for a general "designer's rights" for boat designs. There are some specific situations for which protections apply.

In the US boat plans are covered by copyright. This covers the drawings and text of the plans, but not the shape, construction, etc. In general US copyright lasts for 70 years beyond the creator's death, though there are some exceptions. https://www.copyright.gov/circs/circ15a.pdf

Shape may be protected if a US utility patent or design patent was applied for and granted, and if the patent has not expired.

Shape may be protected if a design was registered under the Vessel Hull Design Protection Act and that protection has not expired. Registration of Vessel Designs | U.S. Copyright Office https://www.copyright.gov/vessels/ The most recent registration shown on the US Copyright Office's website is from 2013 and expires in 2023. Vessel Design Registration | U.S. Copyright Office https://www.copyright.gov/vessels/list/

I have previously posted this about various forms of intellectual rights protection in the US.
.
Disclaimer: I am not a lawyer and the information below is not intended as legal advice. The information below are based on research into United States law.

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.” 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 depending on when the work was created, and for works created before 1978 if and when the copyright was registered. For more information see "Duration of Copyright https://www.copyright.gov/circs/circ15a.pdf 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. The "First sale doctrine" allows someone who has purchased a copy of a item subject to copyright to sell that copy of the item, but not to create additional copies of the item for sale.

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.

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.

License Agreements and Contracts Term depends on the agreement. Private agreements only enforceable by one of the parties which entered into the agreement. 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 restrict building of boats to the plans as a condition of purchasing copies of the plans. However owner of plans cannot restrict the building of boats of the designs by parties who did not agree to the license conditions.

David Cockey

Rockport, Maine

7 December 2010

Revised 31 March 2011

Revised 10 September 2018

Revised 28 January 2019