Sunday, February 12, 2006

Law and Sailing: JS 9000 Copyright Case

The JS 9000 is a simple, narrow and fast 30' sport boat. The beam is only 5.7' and the hull design appears to be influenced by ACC yachts.


The JS 9000 designer, John Swarbrick, hails from Western Australia, and comes from a family that has built boats, particularly raceboats, for three generations. His resume includes the famous Kookaburra series of 12 metre yachts, and Tokio, the Chris Dickson-skippered Whitbread 60.

He first set about designing the yacht which ultimately became the JS 9000 in the late 1980s. In 2001 he built the JS 9000 plug and by 2003 the boat was ready for production.

Unfortunately, in June of 2003 one of his former employees sold the JS 9000 molds to Boldgold Investments who started the process of manufacturing a copy of Swarbrick's JS 9000.
Swarbrick sued the parties involved in the production of the JS 9000 copy for copyright infiringment and obtained an injunction against Boldgold and the other parties to prevent them from using copies of the yacht's hull and deck mouldings to reverse engineer a mold from which they intended to create copies of the yacht.

In a decision delivered in June 2004 (Swarbrick v Burge (2004) 208 ALR 19; [2004] FCA 813), the Federal Court of Australia ruled that the yacht was protected as both a sculpture and a work of artistic craftsmanship under the Copyright Act. Furthermore, the Court found that copyright also existed in various items used in the making of the JS 9000, in addition to the yacht itself. These items included a number of drawings and molds, as well as the "plug" - a wooden handcrafted full-size model of the hull and deck of the boat which is then used to create the mould. The court compared the boat-building process to "the modus operandi of Auguste Rodin", finding that the yacht, plug and mould had real aesthetic quality in addition to their functionality and noted that "the antithesis between function and beauty is a false one". In other words, they were not only artistic works, but works of artistic craftsmanship and had therefore not lost copyright protection by reason of industrial application.

Notwithstanding the peculiarity of the distinction in Australian copyright law between solely artisic works and works of artistic craftsmanship and the correspondingly differing protections provided against unauthorized copying, this decision seems to make some intuitive sense. If a naval architect designs a boat, his right to produce boats using his design should be protected. The protection should be narrower than that which a patent on a novel design concept would provide, but other boat builders should not be allowed to copy the exact design of the boat without permission. The JS 9000 case was made simpler because the defendants were using an actual JS 9000 mold and hull to create their production boats. I don't think the outcome would have been the same if they had just designed a similar boat from scratch using the knowledge they gained while working on the JS 9000 with Swarbrick.

For readers interested in getting their hands on an RS 9000, there is a used one in Texas available for $32,500:


A new boat costs around $60,000 with a trailer and sails from JS Yachts - USA. Here are a few more great shots of the JS 9000:


Thanks to LiveSailDie for pointing me to this interesting story.

12 comments:

writoralis said...

I guess those lawyers that made $400k out of this mess should be able to afford to buy a few.

Litoralis said...

The costs awarded were $400,000. Costs are things like filing fees and paying the court reporter. The lawyers would have made considerably more that $400,000.

holyshitoralis said...

So this poor bastard had his design stolen and then had to pay the lawyers "considerably more than $400,000" and his business still went down the toilet?

OG said...

Hey Litoralis,

Your welcome! Thanks for crediting Live Sail Die.

OG.

OG said...

It's quite a sad case of events when someone just takes your work from underneath you and claims it as their own.

The industry is extremely cut throat and vicious.

I just hope he can build himself back up and once again design brilliant boats.

John Swarbrick said...

Have you seen the latest ~ High Court Judgement.

JS

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