Re: technical drawings

On Thu, Mar 02, 2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 02/28/2000, Carol Cricow <carol[_at_]yujean.com> wrote:
> >
> > I have a client with a 1977 copyright registration for "drawing or
> > plastic work of a scientific or technical character." The item is
> > drawings for the design of a boat hull. The design, if it matters,
> > was originally made for a toy boat.
> >
> > A full sized boat maker is using the same shape of hull. Is there
> > infringement when the copyright covers the "drawing" and the original
> > item was a toy boat, not a full sized one? Does infringement happen
> > ONLY if the drawings are copied or if the drawings are made into a
> > real boat?
> >
> > I've read everything I can find on scientific drawings and functionality
> > v. aesthetics and I'm still not sure about this. Can anyone help?
>
> A boat hull is a "useful article," because it is "an article having
> an intrinsic utilitarian function that is not merely to portray the
> appearance of the article or to convey information." The design,
> therefore, is "a work that portrays a useful article." Consequently,
> I believe this situation is covered by a rather obscure provision in
> the Copyright Act. Sec. 113(b) states:
>
> "This title does not afford, to the owner of copyright in a work
> that portrays a useful article as such, any greater or lesser
> rights with respect to the making, distribution or display of
> the useful article so portrayed than those afforded to such
> works under the law ... in effect on December 31, 1977, as
> held applicable and construed by a court in an action brought
> under this title."
>
> In other words, the 1976 Act (which became effective January 1, 1978)
> attempts to preserve the case law in effect prior to that date. The
> legislative history explains what the prior law provided:
>
> "The 1961 Report of the Register of Copyrights stated, on the
> basis of judicial precedent, that 'copyright in a pictorial,
> graphic, or sculptural work, portraying a useful article as
> such, does not extend to the manufacture of the useful article
> itself,' and recommended specifically that 'the distinctions
> drawn in this area by existing court decisions' not be altered
> by the statute. The Register's Supplemental Report, at page 48,
> cited a number of these decisions, and explained the insuperable
> difficulty of finding 'any statutory formulation that would
> express the distinction satisfactorily.' Section 113(b) reflects
> the Register's conclusion that 'the real need is to make clear
> that there is no intention to change the present law with respect
> to the scope of protection in a work portraying a useful article
> as such.'"
>
> Without doing further research into the prior case law, it appears
> that under Sec. 113(b), building a full-sized boat would not be an
> infringement of the design. If your drawing were of any useful
> article other than a boat hull, that would end the matter. With
> boat hulls, however, you must also consider the following:
>
> On Wed, 1 Mar 2000, Robert Panzer <bigbusie[_at_]aol.com> wrote:
> >
> > My understanding is that there is very specific legislation on boat
> > hulls. You might want to check the Copyright Office site.
>
> Mr. Panzer is referring to the Vessell Hull Design Protection Act,
> which became law on October 28, 1998. This Act was added in reaction
> to the Bonito Boats decision, in which the U.S. Supreme Court held
> that state legislation protecting boat hull designs was preempted by
> the Supremacy Clause.
>
> Section 1332 of the VHDPA provides: "Protection under this chapter shall
> not be available for any design that has been made public under section
> 1310(b) before the effective date of this chapter." 1310(b) states: "A
> design is made public when an existing useful article embodying the
> design is anywhere publicly exhibited, publicly distributed, or offered
> for sale or sold to the public by the owner of the design or with the
> owner's consent."
>
> So it seems the applicability of the Act will depend on whether the
> copyright owner ever authorized boats using the design to be built and
> shown or sold. [If the only authorized copies were toy boats, they
> might not be considered "useful articles."]

This may be slightly off-topic, but does anyone have any thoughts on protecting boat hulls as trademarks? Many boats are distinctive enough to be instantly recognizable to at least the boating public, and their design is instantly linked in the mind to a particular manufacturer. Any thoughts?

David

David Hale
<dhale[_at_]aggt.com> Received on Fri Mar 03 2000 - 14:45:50 GMT