Designer's Copyright

Discussion in 'Boat Design' started by JCaprani, May 27, 2011.

  1. JCaprani
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    JCaprani Junior Member

    Hi everyone,

    I'm looking into copyright from the point of view of yacht designers and have a couple of questions, hope someone can help.

    How does copyright and intellectual property law apply to yacht designers who sell plans to professional and home builders? Is there protection for designers royalties on a successful design?

    How long does it take before a design passes into the public domain?

    For a designer with a long career still working late in life, has anyone made public or open-sourced their older work to generate publicitiy and renew interest in their latest offerings? Has this been a successful move?


  2. DCockey
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    DCockey Senior Member

    First a disclaimer, I'm not a lawyer.

    Second, another disclaimer. My discussion below is about the legal aspects of this question. What is "right" or "moral" can be a different discussion.

    I've looked into this and the best that I can tell is from a legal standpoint there are major differences between what is commonly believed abut rights to boat designs and what is supported by applicable law. Also, I've studied primarially US law. While the basics of copyright and patent law are generally similar for most nations there are differences, particularly for "design".

    Here is my summary of what I found about US 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.” 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 previously posted that in another thread on a related topic. Splashing and the Law
    Some more of what I posted in that thread:

    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:
    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.

    The anti-splashing laws which several individual US states 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.

    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.

    The lines, curves, text, etc on the plan are what is covered by copyright, not the idea of the shape. From a US Copyright Office website: Copyright does not protect facts, ideas, systems, or methods of operation If hull shape was protected by copyright then a firm as Bonito boats who had the means to go to court over someone directly copying their design and pursue the case the to US Supreme Court would have cited copyright law.

    Perhaps an analagous situation is a recipe. This is from a US Copyright Office website:
    How do I protect my recipe?
    A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection.

    In the US architectural work became subject to copyright protection in 1990 through a specific provision of copyright law, and architectural work is defined as “the design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” Boats are not buildings though.

    In the US at least software copyright and intellectual property rights are covered by different law than copyright for other works.

    Design Patents apply on to ornamental aspects of an object not dictated by the functional aspects of the object. Ornamental features on the side or deck of a boat would be covered, the overall shape of a hull or aspects which have hydrodynamic or other functions would not.

    US Patent Office web page about Design Patents:
    Highlights from the page:

    A design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. A design for surface ornamentation is inseparable from the article to which it is applied and cannot exist alone. It must be a definite pattern of surface ornamentation, applied to an article of manufacture.

    A design patent protects only the appearance of the article and not structural or utilitarian features.

    A design for an article of manufacture that is dictated primarily by the function of the article lacks ornamentality and is not proper statutory subject matter under 35 U.S.C. 171. Specifically, if at the time the design was created, there was no unique or distinctive shape or appearance to the article not dictated by the function that it performs, the design lacks ornamentality and is not proper subject matter. In addition, 35 U.S.C. 171 requires that a design to be patentable must be “original.”

    Designs registered under the Vessel Hull Design Protection Act can be viewed at: Vessel Design Registration | U.S. Copyright Office

    I was surprised at how few designs have been registered. Perhaps it is because a court decision in 2004 significantly restricted applicability of the law to copies which were virtual mirror copies of both the hull and deck. However Congress in 2008 amended the law to broaden the protection - more information at
  3. DCockey
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    DCockey Senior Member

    Short summary of what I posted above:

    Boat plans are automatically covered by copyright. Copyright protection applies to the contents of the plans, the lines, offsets, other drawings, text, etc. It does not apply to the boat design described by the plans.

    In the US the functional aspects of a boat design, if sufficently unique, can be protected by a utility patent (usual form of patent) for 20 years if the patent is applied for and granted.

    In the US the ornamental aspects of a boat design might be able to be protected by a design patent for 14 years if if the patent is applied for and granted.

    In the US a hull design can be protected for 10 years by registration under the Vessel Hull Design Protection Act if the design is sufficently new and is registered.

    Trade dress has been used in attempts to protect some designs. It's limited to non-functional elements of design which distinguish the products of a particular builder/seller.

    Contracts and licences between the designer and their customer are a method to try to protect a design. But they don't apply to third parties.
  4. DCockey
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    DCockey Senior Member

    Royalties depend on the agreement between the designer and their customer.

    As far as I can determine a design is in the public domain in the US unless there is an applicable, unexpired patent or it's registered under the Hull Design Protection Act and the term for that protection has not expired. I believe the situation is similar in the UK.

  5. DCockey
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    DCockey Senior Member

    Reading what I posted, I'm not sure the numbers in a table of offsets are covered by copyright in the US.
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