What are the legal implications of getting a board design scanned?

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McDing's picture
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It's your intellectual property,  but proving  in court that they didn't come up with the design simultaneously would be costly and most likly unsuccessful.  It boils down to personal ethics.  There are lots of designs and shapes that are out there in the public domain.  Formerly of now defunct shapers and manufacturers.  It's one thing to take a shape from the public domain and update it.  Another to take a customers file and steal/copy it for another customer or himself.  It just comes down to customer respect and ethics.

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As with any design sharing , its a trust thing ......but if you asked for all your files back, and the cutter said no , what legal rights do you have ?, without a binding contract....it's good to know that most people are straight shooters , but it only takes one arsole to spoil all that for everyone...and that is just a step in a direction I'm sure no body needs or wants......

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I suppose you could sue to get your files back.  Question is;   How do you know they haven't copied those files?

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I think,, if you would have talked to him about it,,,, something positive may have come out of the situation." you never know"


next time have the agreement discusion before hand.

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For some reasons some surfers feel that law doesn't apply to the pirating of designs. 

Intellectual Property is a concept surrounding designs. It has been a topic of debate for a long time. The general consensus is that going after the guilty party is an exercise in futility and seldom, if ever, produces a satisfactory result for the offended party.

Although "I.P" is a gray area, Patent, Trademark, Signature Marks, and Copyrights are not. The abuse of using someone else's registered trademark can result in a "Cease & Desist Order" by an attorney to the offending party, and if the offender persists, legal action can be taken against them.

Some surfers feel that taking legal action is bullshit. 

I don't.

I build boards for a living owning my own company, and the other work I do involves signed contracts with an understanding amongst consenting parties. Contracts serve to establish terms that are to be abided by and protect the parties involved. That's a fair deal in my opinion. If I don't like the terms, I negotiate or don't sign the contract. Simple as that.

The time, effort and expense involved for a company to develop a brand should be something that canbe defended and upheld by a court of law. Try to put yourself in the shoes of the people that are being ripped off by some parasite that wants to cash in on another's hard work?

In the surfing industry, this happens more often than I care to think about, and unless the offended party spends a lot of time and even more money to stop the bloodsucker doing them wrong, the parasite usually gets a fee ride and some benefit until they lose interest and go on to some other rip off. 

People that violate a contract or abuse an agreement with business partners deserve to be held responsible for their decision to do so, and should be held accountable for their actions.

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The cost of litigation is prohibitive, to say the least. However, the bad publicity generated from a public shit fight involving this subject ,would  cost the accused party far more , in terms of reputation and work orders in the future. A handshake deal or gentleman's agreement is only good when dealing with gentlemen , and people of proper moral values. .........there is a storm brewing on the horizon......

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    Howzit kayu, I would have talked with the machine operater to find out who was getting those other blanks and I would be really mad if it was a surfboard company since they will be making money off your design. I would ask the guy to not use your design any more and how did somebody else even know about the design. The bottom line is was there some fine print in a contracy or was it just a " here's my design and do it on the machine " deal. I have never heard of this happening and would really think you would want to get to the bottom of this. Aloha,Kokua

Aloha, Kokua

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Kokua , the copied design doesn't matter so much. That happened a few years ago , and I moved on without fuss and forgot it pretty quick. With the proliferation of machine shaping these days , it should be accepted that a cutter has no right to use a scan or claim any right to it, other than by instruction from the person who owns the scanned designs. This should not even be a legal matter , it's cut and dried and simple. Money should not have to be waisted to prove what should be universally accepted without question. The machines are here to stay and it would be a good thing to know that all cutting houses had a high ethical standard to adhere to , which I am sure most do. But it only takes one bad operator to send globally felt implications throughout an industry that has enough to deal with already. IMO it's extremely important that this is resolved , because if a cutting house or system can dictate their terms and claim some legal right to other peoples designs , we could all be in some very deep mud. I don't use the machine much , but I know lots who do , so it is a topic that everyone involved in making surfboards should be aware of , because if it develops badly in the future it will effect us all ...........and the next generation as well

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Kayu, 

My apologies for my previous seemingly generic answer to Intellectual Property. I must have missed the back story of what you experienced. Reading McDing & Kokua's comments clued me in.

I have always been hesitant to release anything I do involving the CNC domain. When I was getting slammed with orders Bill Barnfield made some comments to me that helped keep things in perspective. Neither of us pass judgement on the process....  it's a valuable tool to say the least.

This is a timely thread for me becuz I am now back at needing to up production on a particular design I do. I will continue to handshape all customs, but the standard is so well accepted that it makes sense to have a file and the ability to machine the stock model. At  the very least, I would have the bulk of grunt work machined to increase quality output for what used to call "production customs" during my sailboard years.

So now I am faced with the issue that you have brought to the table. It's no secret that Surfding and I have helped each other in different facets of this difficult industry. Mike has over 1200 files on hand from too many top shaper designers to want to even begin naming. He has also followed a very ethical conduct where, if a board is brought to him by someone other than the shaper, and they want it scanned, permission from the shaper has to be approved to his satisfaction or he will not accept the work.

Surfding feels that the original designers should maintain control of their work. This was a primary concern for me, along with many designers that turned to him to create their files. Otherwise I wouldn't even consider pursuing this option. 

I don't know if things with the cutting houses have changed significantly in the last few years, but it was my understanding that whoever scanned and cut your original files maintained those files in order to hold the designer captive assuring the cutter would be guaranteed the machining work. I'm not saying that practice is unfair or doesn't make sense, in fact, I understand why they would want to assure themselves getting the work.

In contrast, Surfding assured me that he and his wife (Marie) can install code(s) that protect me while allowing me to have my files (which I would/will own) to have my designs cut closer to home. The closest service to me are the guys at I Shapes in Ventura which is about 45 minutes from me versus Huntington Beach. The file(s) Mike does for me will be compatible and I will maintain control.

In your case and in future cases, it seems that to attract prolific surfboard designers, that the cutting houses (or whatever they want to be called) should form an association that can adopt by laws and create standards and an ethical code that establish confidence in using those parties within the association. I would think a pretty standard contract protecting the client could be banged out that would be agreeable to theparties involved.

The only way to keep people in business honest is to have the ability to hold them accountable. I wish I could say the days of looking someone straight in the eye and a handshake were still enough, but those days are gone. 

I have often said that the surfboard industry is a "monkey see, monkey do" business, and when someone comes up with a design that is popular, or even somewhat promising, the competition is right on their heels hungry for a scrap or two.

Although friends of mine have recently reminded me that "emulation is the sincerest form of flattery", I have to look at it more as: Competiton is good................ parasites are a pain in the ass!  :O


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deadshaper wrote:


 


 


I don't know if things with the cutting houses have changed significantly in the last few years, but it was my understanding that whoever scanned and cut your original files maintained those files in order to hold the designer captive assuring the cutter would be guaranteed the machining work. I'm not saying that practice is unfair or doesn't make sense, in fact, I understand why they would want to assure themselves getting the work.


 


 




DS , that basically sums up my concern over the matter. If , for any reason , the quality of the work or the service by a machine operator becomes unacceptable , the shaper should be free to take his work wherever he wants without question.........and all files should remain his without question, and be given back to him immediately on request .......if you trust the operator and have a good relationship with him , there would never be a reason to go elsewhere......but the choice should still remain with the shaper and there should be no doubt whatsoever, about who owns the IP..........

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Bruce aka deadshaper:

Very well put!

My wife runs the file management side of the business.

Scanning a board that is proven is a very wise method to copy and reproduce.

The Shaper/Designer is the rightful owner of the file.

I have always questioned cutting houses retaining files in order to keep cutting work.

I have scanned boards for shapers who are a pain in the @#$%^&.

We were more than happy to give them their files so they can go to another cutting house.

I have had random guys come in to the shop with boards from shapers I happen to be friends with.

When I tell them I can not scan unless they have a written statement from the shaper they become vexed.

So there is a code of ethics that keeps you in the game by protecting the originators design.

Kind regards,

michael aka surfding

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      Howzit surfding, There are a lot of people out there who could learn a thing or two from you when it comes to the ethics of the business of making surfboards. I know that the only thing the cnc guys in Hawaii want is for you to guarantee that you have a minimum of 35 blanks shaped from a file. I also feel that if you come up with an original design it should be yours and I like that you get permission before using another persons design. Aloha,Kokua

Aloha, Kokua

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Kokua:

If the cutting house is scanning your board for free I guess I could see were they are trying to recover the cost of scanning and creating a file of your board model. Thus the 35 minimum helps them to secure the investment of time into the computer work to develop your file.

For me I find it better to take a transparent approach.

Charge for the scan and the Designer/Shaper owns the file.

Therefore no minimum is required.

If the shaper owns the file I will just cut one board if he wants.

A cutting house has a different business model so I can't criticize how they do things.

I keep a low overhead whereas the cutting houses have a different cost structure.

Kind regards,

surfding

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..if you outsourced your glassing , would it be acceptable for the glasser to lay claim to your designs ?

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kayu wrote:


..if you outsourced your glassing , would it be acceptable for the glasser to lay claim to your designs ?



The glasser would be working for you as a contractor. They are only providing a service for the shape and have no claim on the design of the board.  IMHO if someone were working with a glasser that took liberties with someones work. They would be out of business in no time. 


If the glasser has a special method or process that may enhance the design shaper can not copy that process and then contract another glasser to reproduce that process. 


A Then again the shape would have to show proof that the design was very unique and new to the industry. The glasser in turn would have to prove a they had a trade secret process and had exclusive rights to that process. 


In other words you better be making boards and giving them to a good patent/copyright attorney that happens to surf.  Other wise you would be screwed.

According to Mikki Dora Malibu went to the Dogs in 1964. The Chumash Indians will tell you it was 1664.

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I agree.

Sound bytes

the glasser is working as a (sub) contractor...... (packaging a product if you will)

proof design is unique...... (burden of proof w/related evidence, effort expense involved)

Bottom line.......patent/copyright......(trademark is more likely....... brand it then run (fast) with it.

P.S.

Going back and reviewing what Kayu said regarding "if the quality of the work is not acceptable" (from the entity machining the file)............... this further supports my statement that a contract be created that address this issue amongst others. What terms and conditions renders the contract Null & Void? Without clarity, misunderstandings contribute to a higer rate of litigation, or at the very least, name calling, finger pointing, and an overall lack of professionalism.

I, for one, prefer to deal with professionals at this point in my life. I've been there and done that in the areas of"inthe name of promotion", "bro deals", "new ideas that will reinvent the wheel", etc. etc. etc. (to sound like Yul Bryner).

Just let me make a living and keep it simple............... I don't need to be your demigod.

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Mike , your ethical aproach to your business is to be admired. There would be no problems if that attitude was universally practised, across the whole industry to keep it clean.

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Thanks Kayu!

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kayu, to address your original question (but I'm going to come back to where the thread is now); you should have a written agreement between you and anyone who ''holds'' your files. If a third party has boards cut from your files, both he and the ''holder'' should expect legal action. More often than not, pirating shapes is done by having an unauthorized scan done on a board, not by stealing the original files. I had this happen to me and I didn't go after them; because the scan was done and the boards were made in a faraway land, and the legal action would have cost me more than I would ever recoup. I regret that now. I should have set an example/precedent because I'm sure that's what the responsible party thought - ''he'll never do anything about it because he's a shaper and doesn't have any money''. I let them get away with it.


But I've never had anything pirated by a cutter. One of the ones I've dealt with for a long time has a great system for making sure that every execution of the file is accounted for. They work hard on their security.


surfding certainly knows what he's talking about also. He does scans for some of the world's best shapers and they walk away with their file. That way the shaper has total control over its use, authorizing ''x'' number of cuts with whatever cnc service he chooses.

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The best is always to keep it simple. A shaper should have a choice as to where or who he gets to machine his shapes , and the choice should be his ,and his alone......no business works when someone from outside the business wants to dictate terms and take away freedom of choice........it's also unconstitutional !

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......then again I can 'whore'around  with the best of them. Just pay enuff of my existing mortgage to have me create a design you buy and own rights to, and I'll see to it that it gets done. If you want Clyde Beatty to build 1600 of them per week, I'll make sure he hires enough of the Chinese army to get 'er done.

Just try me.

Just stick me in that old movie "The Magic Christian", throw a ton of cash at me and sure.... I'll be your huckleberry.

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Legally you may get barred from usual surf spot.  Heckeled... a lot by everyone.  Make an original so that burton surfboards or metal melitia surf can claim it and gain some capital.  That capital will help when they rip off the next guy! 

Man SOMEONE should have patented sqaures and circles.  That way if  anyone does as much draw one of those shapes theyll be forced give a hearty donation to the builing of old money!  

There is an oldschool name for surfboard scanner!  They used just call it a "TAPE MEASURE".  If you scan it... it will never come out exactly like the original  but will cost you a lot of money and trouble.  Get a shaper to help you if you can.  Most shapers would rather show up on agood day carrying a hibbiscous boogyboard wearing a pink fanny pack and speedos than copy someone else.

Don't worry too much.. where do you think all the other shapes out there come from.  Few are the innovators

God luck

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Good shapers and even great shapers may not "copy" but they sure as hell "barrow"  They then give credit to those that " influenced them. Simon Anderson borrowed from McCoy, Thrusters were modified McCoy templates. He also credits The Campbell brothers Bonzer.  If you go back further The legendary Greg Noll Mickey Dora Da Cat was a " Borrowed" Yater Spoon design.  The concave nose on vintage nose riders was I believe first done by Tom Morey. 


The off shore companies building boards in China need do slight modifications to produce a board that they feel will be a good selling board.

According to Mikki Dora Malibu went to the Dogs in 1964. The Chumash Indians will tell you it was 1664.

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I recently had a coffee in a local suburb and I had my back to a guy wearing a famous brand [surf ] T shirt whilst I had on one of my own  with my logo for my boards on it done by a graphic artist mate. Well when we left the shop my wife told me he must have looked at my logo fifteen times and took a photo of it  with a mobile phone.Do I feel complimented? well some people would but in this day and age my 'intellectual property' would stand jackshit of a chance up against the greedmachine.

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Reminds me of the boat building business where it is not uncommon for some small builder to splash a hull.   Basically taking something like a Boston Whaler or Mako, flipping it over and making a mold off of the hull then making copies from the mold with ever so slight changes to the hull or interior.

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That does happen a lot with Boat Building. Also the big guys will sub out work on some model boats and allow The contractor make some under his own label with modifications. Hobie skiffs were made by a couple of different builders The same hull design was used by Boston Whaler for a small skiff and jet boat.


 I have noticed a few Boards under different names that are almost identical to The Walden Magic. All were imported boards.

According to Mikki Dora Malibu went to the Dogs in 1964. The Chumash Indians will tell you it was 1664.

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Swaylockers:  If any
design is not legally protected it is open to use abuse.  It is difficult to prove ownership.  It will be costly to seek compensation.  A piece of paper with permission on does not
legally indicate the person who gave you that signature owned the design in the
first place.

I have one new innovative surfboard design.

The name is legally protected, the logo is legally protected
and the design is legally protected hence my first build is now in use on the
beaches safe in the knowledge that it quite simply cannot be copied.

Worth the hassle ?  Oh
yeah . . . A Chinese manufacturer began importing a similar product with the
same name into my country so I e-mailed them and asked them to stop as they
were infringing my IP . . .  they did!

If anybody used my design without permission I am legally
entitled to sue - the law is 100% on my side so to speak.

If anybody wanted to use my design I may issue them a
licence so they might legally do so.

If anybody has been using my design then by law I am
entitled to be compensated thus . . . . . .

  • By a retrospective license fee.
  • By a cut of the profits from the illegal user who I may (or
    may not) issue a licence to so I might reap further income from them if they
    were profitable in using my design.
  • Else I would be entitled to take everything off the illegal
    user pertaining to the illegal use of my design beit order books, machinery,
    vehicles - the lot.

So now I have a real niche . . . . . . I just need to do
something with it!


FYI:  I am in the
process of developing a cleaning fluid that instantly kills off odours – and I
mean instantly!  I have the name and logo
legally protected and am actually in the process of having it assessed for
issue to the public . . . . . . could be good for resin smells or smelly
wetsuits and water craft . . .  stay
tuned! . . . NOTE: Everything I do is legally protected; the law recognises it
as being mine
.  Is the law an ass?  Not in my book my friends, not in my book.

With surfboard blank automation now rife, you operators need
to start being extremely careful - I'd love to own a CNC surfboard machine so if I see anyone copying my design, I might end up actually owning one.  Happy daze ;)

My $00.02

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Your legal rights are only as good as the lawyer you hire to protect thoses right. Those rights will also end when you run out of money to pay that lawyer.

According to Mikki Dora Malibu went to the Dogs in 1964. The Chumash Indians will tell you it was 1664.

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artz wrote:

Your legal rights are only as good as the lawyer you hire to protect thoses right. Those rights will also end when you run out of money to pay that lawyer.

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Have you ever been to court? 
Have you ever been in discussion with a barrister? Have you ever been
guided by a Judge?

I have . . .  the
courts are actually fair.  If in court
and you are running out of money (be it one day or one week) just tell the
judge - in most cases the end decision is made even before you arrive at court
. . .  I personally reckon the Judge is
there to ensure the data and circumstance has been correctly written in the
briefs and also to provide for consideration of all unexpected matters that
arise during the court proceedings whatever they might be, which may alter the predefined
outcome.

But hey . . . remember this . . . . if your IP is registered
the law is already on your side – end of.

You might be confident enough to represent yourself if you
have good evidence of the infringement.

If someone uses my IP it is quite simply a case of theft and
loss of opportunity.  It’s tantamount to someone
stealing a bar of gold from me as I am about to sell it, as well as the equipment
I used to make the gold bar; Also has the thief damaged my reputation by
selling a crap quality replication of my design? . . . I’ll need compensation
for that too.

The judge will find in my favour whether I have a solicitor,
use an advocate or represent myself.

At the end of the day theft if theft – register your IP and
you are pretty much bombproof . . . . I told China to back off and they did . .
.  no courts, no solicitors no hassle
other than ‘due diligence’ and one e-mail.

The above information is most likely withheld from the public
so business can move forward over and above the common man who would have to
normally pay for such experience and advice.

I surf, this is Swaylocks and (other than being a bit late
with this post since it started!) I want help the surfing community.

Hey look -  I just invented
the wheel . . . . . . now who owns that one!


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[mod - sort the extraneous text stuff out too . . . just
started happening - I came to Sways to avoid this nonsense - cheers in advance]

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It does not work that way in The USA in a Civil Case. You have to pay for your own lawyer.  In The land of the free he who has the biggest wallet and the meanest lawyer wins.


 

According to Mikki Dora Malibu went to the Dogs in 1964. The Chumash Indians will tell you it was 1664.