BOAT DESIGN PROTECTION
The Vessel Hull Design Protection Act
Overview and Summary
The recreational boating industry brings an annual economic impact to Florida of $23.3 Billion. There are an astonishing 918,000 registered boats in our state. The recreational boating industry supports some 6,000 businesses in Florida, resulting in 92,000 jobs. In Florida alone, retail sales of new boats, engines and marine accessories amounts to $2.9 Billion annually. According to the National Marine Manufacturers Association (NMMA): “The recreational boating industry has been on a seven-year climb that’s expected to continue[.]”
Boat designs, such as the shape of the hull of a vessel, are extremely important aspects of recreational boats. “Hull” is defined as “the main body of a ship or other vessel, inclusive of the bottom, sides and deck.” Such “Hull” design shape is important because it affects the boat’s safety, load carrying capacity, speed and efficiency.
The “Vessel Hull Design Protection Act”, which is now part of the Copyright Act, affords federal registration of a vessel hull design to give an exclusive right to make, import, sell and/or distribute any vessel with said design. Registration, through a Florida Copyright Attorney, provides the owner of a protected hull design the ability to bring a copyright infringement suit against any person who infringes such rights. A finding of copyright infringement, under the “Vessel Hull Design Protection Act” may result in injunctive relief, as well as, damages to the owner of the protected boat design. Accordingly, it is important to consult with an experience Boat Design Attorney about copyright.
Florida’s Prior Boat Design Registration Law:
The anthesis of the Vessel Hull Design Protection Act derives from a prior Florida state registration law that the Supreme Court of the United States declared as unconstitutional.
With the popularity of boats in Florida rising during the 1900’s, the Florida legislature was forced to take notice. These same law makers as a result passed laws trying to help innovative manufacturers of boats, by preventing the unauthorized copying of boat hull designs. In the 1988 case Bonito Boats, Inc. v. Thunder Craft Boats, Inc., the Supreme Court rejected the Florida laws as being constitutional due to the Supremacy Clause. Justice O’Connor further explained that Florida’s laws interfered with the patent monopoly system established by the United States Constitution and codified in the Patent Laws. This case ultimately led to Federal intellectual property law being the only means in which to legally protect a vessel’s hull design.
Key Aspects of the Boat Design Law:
Ten years later after the Bonito Boats decision in 1998, Congress enacted the Vessel Hull Design Protection Act (VHDPA). The VHDPA protects “the original design of a vessel hull, deck and/or combination of the two which makes the article in which the design is incorporated attractive or distinctive in appearance to the purchasing or using public.” 17 U.S.C. § 1301(a)(2).
An applicant who wishes to register a boat hull design must complete Form D-VH, along with a “deposit” of the design for the underlying boat hull and the applicable fee of $400.00. 37 C.F.R § 212.3 Additionally, the applicant must be the owner of the underlying design or its duly authorized agent.
The deposit material submitted with Form D-VH may consist of no more than two drawings or photographs per sheet. Three sheets maximum may be submitted on 8 ½ x 11 paper. Drawings must be in black ink only and have “appropriate surface showing which shows clearly the character and contour of all surfaces of any 3- dimensional aspects of the design.” Broken lines can be used to denote portions not claimed in the design. If photographs are used as deposit material, they must be “[h]igh quality black and white or color photos.”
A single application may be used for more than one design embodied in a vessel provided that the information contained in all spaces of the application other than space 2 is the same for each design. An application for registration of the boat design must be made with the Copyright Office within two years of the design being made public.
Information Needed for Copyright Form DV-H:
Form DV-H is a specialized Copyright Application for registering vessels hull designs before the United States Copyright Office.
This Boat Copyright Application requires the following six key items:
- the make and model of the vessel that embodies the boat design, i.e. what is the name of the boat;
- the type or style of the boat design, i.e. a sailboat, power boat, cruiser, open water fisherman, or troller;
- a general statement regarding the boat design features, i.e. what specifically makes the design unique;
- a list of the designers of the boat hull, or of the employer if the design was made within regular scope of employment, i.e. a design made for hire.
- the date of when the boat design was first made public.
- a declaration that the applicant’s statements are true and correct – including that the boat hull design is original, created by the designers, and that the design is not protected by a design patent.
Services relating to registration of original designs of vessels are subject to fees prescribed in 37 C.F.R. §§201.3(c) and (d). The price to register a vessel hull with the Copyright Office has risen in the past years and is currently at $400 (US).
Vessel owners, manufacturers, and designers alike should consider protection under the Vessel Design Protection Act, along with the monetary incentives it provides to create new vessel hull designs.
If you have questions on how to protect a boat design, call a Florida Boat Attorney today at 305-374-8303 to help answer your questions.