Copyrighting a Ship, Boat, or Vessel Hull?
One copyright limitation that many people may not be aware of is that one cannot copyright useful and utilitarian aspects of a Work. For example, you cannot copyright register a boat or recreational vehicles. However, you can copyright a "Ship Hull..", How can this be? Let's take a look.
Copyright law is Constitutional
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const., Art. I, §8, cl. 8
Many people already understand the basics of copyright registration along with its benefits, but for those who do not this section of the blog will briefly cover such concepts. Copyright is a federal law in the United States under Title 17 of the United States Code. The purpose of copyright protection is to give an owner of a "WORK" federal protection which includes a "bundle of rights" including the exclusive right to:
1. Make copies of the copyrighted Work
2. Distribute the Work
3. Make derivative Works
4. Publicly perform the Work
5. Publicly display the Work
To obtain a copyright, all a person has to do is register the Work with the United States Copyright Office (USCO) and pay the required fee. In general, any creative work of authorship fixed in a tangible medium of expression is eligible for copyright protection. There are some things that cannot be copyrighted such as facts, ideas, and functional items (look to patents).
The protection granted typically lasts the life of the author plus 70 years. Once you have a copyright, you can license the Work to another for a fee. You can also file a federal copyright infringement lawsuit to prevent someone from violating your exclusive rights. Registration of a Work is MANDATORY if you plan to file a lawsuit.
Let's look at Ship Hull design copyright.
Vessel Hull Design Protection
As discussed above, the creative Work must be "fixed in a tangible medium of expression" So in the case of ship hulls and design, it isn't enough to have merely built the ship or to try to verbally describe it to the U.S. Copyright Office. The author or designer must have their original idea fully laid out on paper or in a design format that is permitted by the U.S.C.O. According to the USCO:
"The Vessel Hull Design Protection Act, title 17, Chapter 13 of the United States Code, was signed into law on October 28, 1998, providing for protection for original designs of vessel hulls. The law grants an owner of an original vessel design certain exclusive rights if application for registration of the design is made with the Copyright Office within two years of the design being made public. Protection is afforded only to vessel 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. The Copyright Office has promulgated interim regulations for registration of vessel designs."
The right to copyright vessel hull designs was thus first mentioned in the Digital Millennium Copyright Act, or DMCA. Previously boats were considered a useful and moving object which kept them from being copyrighted.
The interesting thing is that Title V has different protection periods and requirements than other types of copyright protections (ex. for music, software, books, etc.). Here are some important points to consider:
- A vessel hull design is only protected for ten years from either date of registration or date of public debut, compared to the more standard "author's life plus 70 years" that applies to other types of Works.
- Common designs within the industry cannot be copyrighted - these are defined as “such as a standard geometric figure, a familiar symbol, an emblem, or a motif, or another shape, pattern, or configuration that has become standard, common, prevalent or ordinary”
- Another aspect is the timeframe of embodiment which the U.S.C.O. defines as a design “that was made public by the designer or owner in the United States or a foreign country more than two years before the date of application for registration”. So this means that a designer should register their work as soon as possible, this is good advice for any Work.
- Another important IP consideration is that copyright protection can only exist by itself and not with patent protection. So if a newly designed hull is a patented design it cannot be registered with the U.S.C.O.
- Another interesting caveat is that the design must be implemented to achieve protection, this means that the vessel must be built to its correct scale instead of just a design on paper.
- Unlike typical copyright rules (where providing the public "notice" of the copyright using the copyright symbol is permissive) when it comes to vessel hull design, copyright registration MUST be displayed. The mandatory design notice must contain “the name of the owner [of the design], an abbreviation by which the name can be recognized, or a generally accepted alternative designation of the owner” along with the date of registration and a statement of protection.
- An example of this statement would be “This vessel is protected by U.S. Copyright Law Chapter 13 with a copyright registration date of 12/04/2019 by the owner, John Clayton Doe or JCD.”
- This notice must also be “affixed” to a location on the vessel hull as to give “reasonable notice”.
- The simpler version of this notice is only available once registration is complete and constitutes only the registration number.
- The standard electronic registration fee is $55 but for form D-VH, which is necessary for vessel hull registrations, it is $140. This $140 filing fee includes six (6) different views or depictions of the vessel, for any more than that it is an additional $20 fee per page.
What to submit
Here is a look at some (but not all) of the requirements:
"(a) Deposit Requirements. Section 212.3 of the Copyright Office regulations, 37 C.F.R., along with the instructions contained on the registration Form D-VH, provides the details for completing a vessel hull design application. The regulations state, “[t]he drawings or photographs submitted should contain a sufficient number of views to make an adequate disclosure of the appearance of the design, i.e. front, rear, right and left sides, top and bottom. While not required, it is suggested that perspective views be submitted to show clearly the appearance and shape of the three dimensional designs.” 37 C.F.R. § 212.3(e)(2). And the instructions to Form D-VH state that “[i]t is extremely important that the drawings or photographs that accompany the application reveal all aspects of the design for which protection is claimed.” Furthermore, the regulations provide:
“The registration extends only to those aspects of the design that are adequately shown in the drawings or photographs.” 37 CFR § 212.3(e)(1)."
Scope of Protection
According to the Report:
"(b) Scope of Protection and Registration Practices. The second issue is whether the VHDPA covers the various components of a vessel. Section 1301 of the statute provides that design protection can exist for the hull of a vessel “including the deck,” and does not include masts, sails, yards and rigging. 17 U.S.C. § 1301(b)(4). Masts, sails, yards and rigging are components typical of a sailboat, but the statute does not speak to other components of most boats, such as seating, compartments, railings, consoles, and cabins. The approach of the Copyright Office in making registration has been to interpret § 1301 strictly. The Copyright Office will allow an application to refer only to components that are part of the molding of the deck, such as seats, consoles, railings, coverings and cabins."
There have not been a lot of lawsuits challenging hull infringement. According to the report from the Copyright Office (link below):
"The evidence to date that the VHDPA has been effective in suppressing infringements of protected vessel hull designs is scant and anecdotal. There appears to be only one lawsuit which has been brought under the VHDPA, which is Blazer Boats, Inc. v. Maverick Boat Co., Inc. Case No. 02-14283 CIV (filed June 17, 2002)(S.D. Fla). In that case, Blazer Boats alleges that Maverick Boats' Pathfinder 2200 infringed the design of its 2220 Blazer Bay boat. Maverick has countersued for infringement."
According to the popular Marine blog MarineLink:
"The U.S. Court of Appeals for the Eleventh Circuit ruled that a vessel hull design that merely corrects a mistake in an earlier design is not substantial. In the instant case, plaintiff boat company designed and produced a new boat. The vessel hull design was submitted to the U.S. Copyright Office for registration, but the submittal was made too late after production had started to qualify. The boat was redesigned to correct minor mistakes in the original design. The revised vessel hull design was then submitted for copyright protection and accepted. Two other companies began producing boats the design of which was similar to that of plaintiff's redesigned boat. Plaintiff brought suit. The court held that, for the design of the second vessel hull design to be eligible for registration, the changes from the original design must be substantial. No evidence was submitted to show that the corrections of mistakes made in the original design were other than minor. The court cancelled plaintiff's vessel hull design registration. See Maverick Boat Company, Inc. v. American Marine Holdings, Inc., No. 04-11259 (11th Cir. – HK Law)."
Uses of Registration
The main purpose of copyright registration from the viewpoint of the designer is normally protection. With the ability to license reproductions and distributions the copyright owner can much more effectively regulate how their product is used and who uses it. For an example lets say there's a designer of luxury yachts, now he shows his new wonderful and innovative design to a yacht builder along with a bid for business. The yacht builder declines the designers offer, now that may seem like the end of the story but it is not. That same yacht builder takes the design and shows it to a client who immediately falls in love and asks if it can be built, of course the builder says yes but does not inform, ask for permission for use, or pay the original designer. In this example, a violation of copyright law could be pursued. This highlights the importance of seeking the registration, and possibly even using NDA's (non-disclosure agreements) when presenting ideas to end users. The same concept holds true with architectural plans which can also be copyrighted, and sometimes are stolen by a competitor or a homebuilder who decides not to pay the architect.
The Copyright Office has registered approximately 156 vessel hull designs since July 29, 1999. As a vessel designer or a ship building company that has its own in-house team of designers it is highly advised to register any new hull design. This registration is more complex than other copyright registrations which is why it is frequently advised to talk to an attorney or legal professional with a specialization in copyright or maritime law. We have experience in all types of copyright issues from software, to music, videos, internet file sharing, jewelry, fashion and other items. Call us at (877) 276-5084 or send us an email through our form submission. In many (non-litigation cases) cases we can fix a low flat rate fee.
https://www.copyright.gov/reports/vhdpa-report.pdf (copyright office report)
https://www.copyright.gov/vessels/ (Vessels explained)
https://www.copyright.gov/forms/formdvhi.pdf (Form to apply for registration)
https://www.copyright.gov/vessels/regs/dvh0538.pdf (sample registration submitted)
https://www.copyright.gov/vessels/regs/dvh0488.pdf (another sample)
https://www.copyright.gov/vessels/list/ (USCO Vessel Design registration database)