The key concept that I see is missing here is called Public Domain.
If information, or what everyone here seems to be referring to as intellectual property, was, for whatever reason, legally in the Public Domain at the time of it’s general use, it belongs to the general public. Anything in the public domain is fair game. I am not an attorney and this is not legal advice. If anyone feels their rights have been violated it’s their responsibility to secure them.
There are specific rules, however, as to how intellectual property falls into Pulic Domain. Failure to secure one’s legal rights within the time allotted is probably the main cause.
Interestingly my words written here are now officially protected by US Copyright Law and International Treaties. Can anyone tell me why?
The key concept that I see is missing here ======================================
What if some forward thinking individuals took it upon them to give back a small percentage for what they take freely? Then it becomes a win / win situation, where the incentive of all parties is to give more. A growing system w/ incentives to make more plugs.
Copyright protects the expression of an idea, not the idea itself. Thus, the drawing of a shape would be protected from reproduction, not the shape itself.
Functional patents have certain requirements before any protection is offered:
1) A patent must be applied for within one year of coming to market (no grace period for protection in European markets)
2) The invention must be "novel". I.E. that it truly is a new design.
3) The invention must be "nonobvious". I.e. If someone invents eye holes for shoe laces, the next person can't claim to have invented passing shoe laces through the eye holes.
4) The invention must have "utility". I.e. you can't patent something that doesn't actually do anything.
Design patents cover purely ornamental features. Again they must be truly “novel” and “nonobvious”.
Trademark (or Tradedress) protects a clearly identifiable shape or mark that identifies the product to your consumers. Thus, the unique shape of a traditional glass Coca-Cola bottle will have a protectable Tradedress because if you put any other soda in that bottle the consumer would likely be confused as to whether Coke made it or not.
Thus,
The shape of the board itself is not an expression of an idea under copyright law. A quick search of patents shows no patents in the name of Clark Foam, Preisendorfer (sorry Rusty) or Gordon Clark. In any case, it would seem a very difficult task to argue that a slight change in the rocker is both “novel” and “nonobvious”. Also, attorney’s fees for filing a patent usually run about $10K (much, much more for medicines and bio-patents). I don’t get the impression that Grubby Clark was into spending money on attorneys.
Finally,the shape of a blank is practically generic. It would be hard just looking at a blank to tell it was a Clark board as opposed to, say, Walker. It is unlikely that a consumer would grab one thinking it was the other based solely on the shape.
I would not, however, suggest that a new manufacturer call their boards “6’2"C”. This name may well have trademark significance. Of course if the trademark owner is out of business…
The slippery slope here is that if the dimensions of a blank can be copyrighted, the it follows that the dimensions of a surfboard can also. Since I did a “thruster setup” in 1964, do I have a claim? It was “intellectual property”, not done before. The real world answer is no, in my opinion. It sounds as if someone is looking for a free ride. How short a time ago was there TERROR at the prospect of no blanks? First one to register the dimensions 6’2" x 12" x 19"+3" x 13 1/2" x 2 5/8" owns it?
I think the post by Rob, and Mark, are pretty much on point. The Genie is out of the bottle. But, what if the Chinese send a legal team out and copyright a ton of surfboard dimensions blanketing 90% of the populat sizes. What then? Who among us would have the capital, or the will, to try fight that legal battle? Just a few thoughts for the mix.
A line should be drawn between the different forms of IP that may be violated.
Copying the rough specs, fine-tuning it, and selling it is pretty obviously fine. There is so little IP in the blank designs, and so little original compensation, that there is no way to judge it a violation.
Using the name of the shaper or the blank raises different issues wrt trademark. You would have to judge if the market for work from that shaper or his reputation would be harmed. Further, even using the shaper’s name raises other issues related to his reputation that would require some consent.
And saying you list the “Shapes from the Clark Foam Catalog” and advertising as such is clearly a blatant violation of trademark. It would be easy to work around, though, by using different names for the blanks.
It’d be interesting to know if Clark trademarked his blank names…probably not.
As to the issue of patentability of the thruster…we should assume, first, that Anderson was the first person to use three fins in those rough positions. I am 100% sure you could be awarded a patent on that. The patent would be on a surfboard with three fins in three specific positions, for the purposes of maximizing turnability or something like that. The key would be in the specificity of delineating where the fins needed to be placed. This assumes Anderson was the first to put them there, which I already know it a major point of contention. Anytime you narrow the scope of the design, you improve the patentability. It would have rail fins delineated as
from 10 to 12 inches up from the tail
toed towards the stringer from 2.4 to 4 degrees
rear fin edge 1 to 2 inches from the rail
Rear fins as
up 3 to 4.5 inches from tail
aligned with centerline
Then it would be seen as so narrow in scope that it would hardly violate anyone else’s prior designs or be “obvious” from existing designs.
That’s pretty much in a nut shell what was in the post that I trashed. I’m not inclined to make any claims or dispense legalese, however, I will steer anyone with more questions to uspto.gov
But I will say this…That which you posted is worth every bit of 2 cents. I hope crew is listening.
BTW, rlrhett, did you check out the hull copyright law?
Well, if what you propose is rolling back the profits, I’d be inclined to agree in a perfect world it might be nice, but in the real rotten stinking world we live in it would probably cause nothing less than the complete and utter distruciton of our economy.
For example what would really happen to Al Merrick and all other shapers if they had to kick back for every chip and Thruster they ever made, to the sources? Greg Loehr would be a very rich man even if he only got a dollar a board. Just a rough guess of $36 million for the last ten years. Simon Anderson too. Buck a board for 25 years? We’re talking hundreds of millions. And since most companies go through their money like water it would probably destroy the industry.
I don’t think Greg or Simon ever had that in mind. They are both stand up men. And besides they don’t have any legal precident to stand on. Just saying I made this and people copied it is not a case. Unless one can prove fraud, because there are no statuate of limitations on fraud. But it would be nearly impossible to prove if not impossible because there really would have had to have been fraud at the source and I don’t think either of these men ever claimed they were defrauded. Even when it took almost 20 years for Loehr to be given credit for his roll in what we now call concave. I knew the story, but it took Webber to give the credit back to Greg who himself magnanamously gives credit to Brewer even though Brewer’s concave is markedly different and nothing like Loehr’s. See that is how lucky we are to have Loehr post here. To have that much free easy access to the brain of a source is just phenomenal.
That’s pretty much in a nut shell what was in the post that I trashed. I’m not inclined to make any claims or dispense legalese, however, I will steer anyone with more questions to uspto.gov
But I will say this…That which you posted is worth every bit of 2 cents. I hope crew is listening.
BTW, rlrhett, did you check out the hull copyright law?
Sure, but I think one would be hard pressed to apply it to surfboards. 17 USC 1301 (b) (3) (a) limits the hull copyright to a vessel “that is designed and capable of independently steering a course on or through water through its own means of propulsion”. Nothing is ever black and white in the law, and for enough money I would gladly argue that the wave is its “own means of propulsion” and the fins are “capable of independently steering a course”; but I would have to tell a client that a judge buying that argument in a copyright infringement case would be VERY unlikely.
For all of you who could care less about all this legal talk, sorry! Enjoy making your boards, and if you see a shape you like I wouldn’t worry too much about copyright. After all, I think it is 20% design and 80% the skill of the shaper in executing the design. Not even CNC machines produce exact copies two boards in a row.
This is not a hijack of this thread. This gets down to the nuts and bolts of Barnfield’s orginal querry.
Where I found the crack in the Hull Law was in the list of companies that applied for and received protection. One was granted to a company that applied for an epoxy surf ski. I used that information to convince the LOC examiner to offer the suggestion that I could apply with a cover letter explaining my position and basis for my argument. That is where it stands now. I have one surfboard company just a little interested.
Most shapers don’t get it or are offended by the suggestion that they even need government protection or they believe that any protection would be ineffective. Now, while CNC may not produce an exact copy a mold will or darn near. And I sure hope that there are allowable tollerances to give law enough leeway to include CNC copies as actionable under the law. But I am not certain. Just a guess. These are very complicated details. And as CNC machines spread rapidly, I’m sure the law will lag behind.
Copyright protects the expression of an idea, not the idea itself. Thus, the drawing of a shape would be protected from reproduction, not the shape itself.
…
Well, this is ALMOST true. Copyright also protects functions embodied by the expression that are not available elsewhere.
For example, computer programs are protected by copyright. Their source code embodies a function, and that function is similarly protected by copyright. The same goes for things like recipes. It really depends on how unique the function is that is provided exclusively by the expressions.
As already noted, the blank shapes are not very unique, and the shaping of millions of boards from these blanks, each of which creates a new “plug”, virtually ensures that just about every conceivable shape has been created as the expression of someone. Thus, the “shape” is not really protected, just the original expression. So, making a mold from the original without permission would not be OK, using the original’s rough specs and making a new blank design would be fine…
When producing copies of copyrighted material you don’t even have to make your copy from an original to violate. And the copy you produce doesn’t have to be an exact representation.
For example you can’t legally sit in a movie theater and videotape a movie with a hand held minidv Handicam. The act itself is a violation. The tape contriband.
Scanning a plug is no violation unless it is copyrighted. Making an exact replica by using a plug to create a mold is subject to the same test. And as of right now there are no copyrighted surfboard hulls.
Are we being cheated by the law? I would argue yes. And I could probably drive a truck through the loophole, with a little help.
I haven’t had the chance to read the entire thread so apologies if this has already been said, or is not relavent; or both.
I used to run a business making holds for climbing walls. I would shape the masters from a variety of textured foams etc. My holds had a certain look to them, that is to say certain curves and radius’s. More importantly I designed them to be finger and tendon friendly - rather than resemble rock, as many of the existing manufactures were doing at the time.
I looked in to Product protection, Patents cover processes, there was no way I could demonstrate that my ‘shapes’ were differant from any one elses, even though they were…
Quite soon afterwards several of the bigger companies started to produce similar hold, there was nothing I could do…
I would imagine that unless Clark can/could demononstrate that the differing shapes of their blanks do certain things in terms of either making shaping easier or having a definate ‘end/finished product’ advantage over other blanks there would be nothing legally that could be done to stop someone copying certain characteristics of the clark products.
I would imagine as a businessman ending his company that Gordan would have sold those intallectual property rights if they were sale-able.
I am based in the UK however and maybe US Company/product protection is vastly differant.
Howzit E-Pacman, The fin companies like FCS pay the pros who design fins a residual, ie: the K fins, and others so it seems to me that the plug shapers should get a little something for their work also. Wouldn’t have to be to much and after a while they would have made a pretty penny since Clark made so many of their blanks over the years. A dollar a blank, 1000 blanks a day would generate about $360,000.00 a year for the shaper and that would make a nice bonus for them even after it’s split up between the shaper plus the most popular blanks would get those shapers more money. Seems like the morally right thing to do.Aloha,kokua
"Functional patents have certain requirements before any protection is offered:
A patent must be applied for within one year of coming to market (no grace period for protection in European markets) "
A patent must be pursued within 12 months of the original provisional patent appication. It can be delayed for several years by refiling every year if it has not been exposed to the public. This is a cheap way to continue working protos for years and hopefully keeping future patent protection. When you decide to actually market the invention has no bearing on the application process as such. A PCT Patent appication after the original 12 months is probably the best way to extend your patent for a further 31 months worldwide, before pursuing the expensive filing of protection in each country.
“2) The invention must be “novel”. I.E. that it truly is a new design.”
Yes, there must be an ‘inventive step’.
"3) The invention must be “nonobvious”. I.e. If someone invents eye holes for shoe laces, the next person can’t claim to have invented passing shoe laces through the eye holes. "
The second person’s claim would be included in the original designer’s patent application.
"4) The invention must have “utility”. I.e. you can’t patent something that doesn’t actually do anything. "
No, you can’t. But you can register a Design for a ‘better looking’ version of what is already available.
Yeah that does sound like the moral or ethical thing, but that should have been the deal Clark made in the beginning. And is an endorsement deal for a finished product really the same as designing what is essentially a raw material? Would you give the chemist who came up with the formula for Reichold or Silmar gloss resin a buck for each beautifully glossed board you finish? Oh wait, we should each give you a buck for your famous Kokua’s gloss recipe. Now that one, I will agree with.
For whatever reason, these guys made plugs for Clark without any apparent compensation or protection. Maybe Bill Barnfield can correct me if I’m wrong on that point. So even if it’s the right thing to do, I don’t see how you can force a business deal on a new business when that deal wasn’t present in the original business.
So here’s another question. What if I ordered a Bill Barnfield designed 10’6" blank, but with a Rawson rocker. Would you split the dollar? What if I ordered with my own custom rocker? Would the first guy that decided an extra 1/4" of rocker in the tail made the blank easier to shape get a cut? I have the entire “public” clark rocker catalog for each blank. Some are a couple of pages for one blank. Private rockers probably add a few more pages. Not many rockers are credited. So if someone was to make a 6’3" R style EPS blank but with one of the other “public” clark rockers, and then took 1/4" of thickness out, would anyone recognize it as a 6’3"R if they didn’t advertise it that way?
Clark did alot of things well and the Clark catalog is still a benchmark for the industry. I don’t think a single one of the EPS blank makers has any widespread name recognition to speak of, but they need to have some way of giving shapers a product that they are familiar with. For the time being, either explicitly referencing clark or giving specs. that closely match clark’s without actually saying it seems to be the way to go. As time goes on, maybe EPS blanks will continue to look like clark specs. or maybe they won’t.
Howzit native, Just thought it would be a good idea to compensate the plug makers but you are very correct when it comes to the variables involved in doing it,wasn’t even thinking about those since most shapers I know just ordered their blanks with what they consider their own custom rockers. Aloha,kokua
Being that several manufacturers are blowing polyurethane foam specifically for surfboard blanks it would seem that with a simple tweak here or there you’re all right calling it whatever you want. Just don’t call it “Clark Foam” or spray a “Clark Foam” logo on it.
Most finished products are so generic, blank designs, be they domestic or international, are going to follow a fairly narrow set of close tolerance design parameters. Pretty difficult, in my opinion, to bottle that up and claim it as proprietary.
Howzit native, Just thought it would be a good idea to compensate the plug makers but you are very correct when it comes to the variables involved in doing it,wasn’t even thinking about those since most shapers I know just ordered their blanks with what they consider their own custom rockers. Aloha,kokua
Salut, Kokua! (“salut” must be the approximate equivalent to “howzit” in French, I guess…)
I think you nailed it right. If you take the 10’6" by Bill BARNFIELD in CLARK’s catalog for instance, you will notice that (at least) two rockers were offered: Natural (the one Bill shaped into his plug, I assume?) and Rawson (Pat RAWSON rocker made available to the public). So who are you going to compensate? Bill or Pat? Or both?
Enjoy making your boards, and if you see a shape you like I wouldn’t worry too much about copyright. After all, I think it is 20% design and 80% the skill of the shaper in executing the design. Not even CNC machines produce exact copies two boards in a row.
