Are you madabout kit cars      
 "We've Got Kit Cars Covered" Information about Madabout-Kitcars.com Contact Madabout-Kitcars.com         Home of UK kit cars - madabout-kitcars.com Various kit car write ups All the latest kit car news Kit car related and general discussion

Search
Manufacturers
Kit Cars
Kit Car Data sheets
Picture Gallery
SVA Knowledgebase
Clubs & Communities
Build cost estimator
Kit cars for sale
Knowledge Base 
KitcarUSA.com
Classic-Kitcars.com
 

Go Back   Madabout Kitcars Forum > Mad Build Area > General Build Chat

General Build Chat Area for general build chat, questions, tips, tricks and progress

Reply
 
Thread Tools Display Modes
  #1  
Old 12th February 2021, 12:15
Mitchelkitman Mitchelkitman is offline
Senior Member
 
Join Date: Oct 2013
Location: norfolk
Posts: 631
Mitchelkitman is on a distinguished road
Default Replica rage - again

Has anyone else seen the case involving the action taken involving a C-Type replica. looks like JLR are getting litigious (sp?)
https://www.pistonheads.com/gassing/topic.asp?t=1915912
Reply With Quote
Available from eBay
  #2  
Old 12th February 2021, 12:58
Paul L's Avatar
Paul L Paul L is offline
Senior Member
 
Join Date: Feb 2012
Location: Wembley, London
Posts: 4,949
Paul L is on a distinguished road
Default

It appears there is an element of 'Fake News' in this story.

Read post #5 in this thread, the 'old couple' are running a '£250k a car' replica business.

https://www.rodsnsods.co.uk/forum/ch...-ruling-556907

Cheers, Paul.
Reply With Quote
  #3  
Old 12th February 2021, 13:25
Mitchelkitman Mitchelkitman is offline
Senior Member
 
Join Date: Oct 2013
Location: norfolk
Posts: 631
Mitchelkitman is on a distinguished road
Default

But read further and there are the transcripts of the court proceedings - it makes interesting reading, and an eye-opener to how hypocritical a large company (or rather the people in 'charge' of it) can be!
Reply With Quote
  #4  
Old 12th February 2021, 16:28
Mister Towed's Avatar
Mister Towed Mister Towed is offline
Senior Member
 
Join Date: Jul 2011
Posts: 5,222
Mister Towed is on a distinguished road
Default

I'm no expert, but it looks like UK law gives you between 10 and 15 years of protection from copying of your design if you can prove it's yours, and up to a maximum of 25 years if you register the design, but you can only do that when it's a new design.

https://www.gov.uk/design-right

When did Jaguar design the C Type, again?
Reply With Quote
  #5  
Old 15th February 2021, 10:26
NeilF355's Avatar
NeilF355 NeilF355 is offline
Senior Member
 
Join Date: Sep 2011
Location: Teesdale
Posts: 221
NeilF355 is on a distinguished road
Default

If you examine the translation of the relevant court papers from the Stockholm district court here http://bit.ly/38UwvJjyou will see on page 12 that Jaguar Landrovers claim for the C type (designed by Malcolm Sayers)
“The Jaguar C-type is a physical object which, as a subject-matter
of utility art, has such an expression that it can be identified with sufficient precision
and objectivity. The design therefore enjoys protection as a work of utility art.

In other words they claim it’s design is a work of art similar to the work of artists, composers and writers and as such enjoys copyright protection for the life of the designer and for 70 years following on from his death i.e. till 2040.
This is similar to the approach Ferrari took with the 250 GTO when they persuaded an Italian court to declare it’s shape a work of art. This did not help them however when Ares design took Ferrari to court over it’s plan to produce replicas and won, citing the EU’s Intellectual Protection Office (“EUIPO”) use it or lose it rules.

In my opinion the C type was always designed to aerodynamic principles to make the car go faster around the Le Mans circuit than any other racing cars of the time such as the Porsche 356 SL (or should that be works of art??). I’m sure it was never designed as a “work of art” but just happened to look good.
I hope that this Swedish court ruling is overturned on appeal and common sense prevails but this is the E.U. so I’m not holding my breath.

Last edited by NeilF355; 15th February 2021 at 10:35..
Reply With Quote
  #6  
Old 15th February 2021, 10:36
Mister Towed's Avatar
Mister Towed Mister Towed is offline
Senior Member
 
Join Date: Jul 2011
Posts: 5,222
Mister Towed is on a distinguished road
Default

The "it's a work of art" argument should backfire on JLR as the rights to a work of art sit with the designer or their heirs if deceased, not the person or company who commissioned the piece. That would suggest that JLR owe a sh*t ton of money to someone for their 'continuation' models and for blatantly copying the Mk2 grille and basic shape on the (ugly) 2000's S Type.
Reply With Quote
  #7  
Old 15th February 2021, 17:03
Lucky@LeMans Lucky@LeMans is offline
Senior Member
 
Join Date: Aug 2012
Posts: 1,904
Lucky@LeMans is on a distinguished road
Default

I think their only claim would be the name, "Jaguar C Type" and the Jaguar badges. As for the work of art angle I don't think that would have been a consideration back in the day. It was a pretty generic shape by all accounts, many racing cars from that era looked similar. I don't know how the work of art can be applied in retrospect just because that shape now has a value. BL took over Jaguar and then there was the BMW and Ford ownership. JLR were bought by TATA so I don't know if they even have authority to bring a case for such an old car design from the 1950's ? Its a bit of a tenues link and a case of clutching at straws !

Last edited by Lucky@LeMans; 15th February 2021 at 17:06..
Reply With Quote
  #8  
Old 16th February 2021, 09:29
NeilF355's Avatar
NeilF355 NeilF355 is offline
Senior Member
 
Join Date: Sep 2011
Location: Teesdale
Posts: 221
NeilF355 is on a distinguished road
Default

Quote:
Originally Posted by Mister Towed View Post
The "it's a work of art" argument should backfire on JLR as the rights to a work of art sit with the designer or their heirs if deceased, not the person or company who commissioned the piece.
The court documents detail a couple of paragraphs of legalese detailing how in their view JLR hold the copyright quote
"Malcom Sayer, William Lyons, William Heynes, Robert Knight and Tom Jones were employed by Jaguar Cars Limited between September 1950 and May 1951. It follows from appropriate legislation in the United Kingdom that Jaguar Cars Limited was the original holder of the copyright in Jaguar C-type.

If the Court were to rule that the question of who was the first copyright holder should be examined with the application of Swedish law, the author or authors, by his employment relationship with Jaguar Cars Limited, transferred the copyright to Jaguar C-type to Jaguar Cars Limited.

Even if Malcolm Sayer, William Lyons, William Heynes, Robert Knight or Tom Jones were not initially employed by Jaguar Cars Limited at the time of the creation of the Jaguar C-type, but were initially recruited as contractors to create the Jaguar C-type, the copyright has been transferred to Jaguar Cars Limited under agreement based on the parties' expectations and intentions, i.e. that a car company must obtain the exclusive right to the shape of the cars – since this is in the nature of the contract."

There then follows a history of the changes of ownership and rights of Jaguar Cars limited up to the present day Jaguar Land Rover Company.

It is interesting that there are no legal contracts or documents to support the above suppositions in any of the court hearing documents.
Reply With Quote
  #9  
Old 16th February 2021, 09:52
NeilF355's Avatar
NeilF355 NeilF355 is offline
Senior Member
 
Join Date: Sep 2011
Location: Teesdale
Posts: 221
NeilF355 is on a distinguished road
Default

Quote:
Originally Posted by Lucky@LeMans View Post
As for the work of art angle I don't think that would have been a consideration back in the day. It was a pretty generic shape by all accounts, many racing cars from that era looked similar.
Agreed, but this is the bit that worries me - If they do succeed in establishing that a car design is a "work of art" then all car designs would fall into the same category and therefore have this same copyright protection currently enjoyed by works of art, musical compositions, books and plays.

This type of copyright is automatically applied and lasts for the life of the originator and to the benefit of his/her estate for 70 years after his/her death.

Meaning that virtually all replicas, such as cobras, lotus 7s (except maybe caterhams) Ferrari and Lamborghini replicas etc. will be in violation of this copyright
Reply With Quote
  #10  
Old 16th February 2021, 10:04
Mitchelkitman Mitchelkitman is offline
Senior Member
 
Join Date: Oct 2013
Location: norfolk
Posts: 631
Mitchelkitman is on a distinguished road
Default

Makes me wonder where a subtle difference can avoid the copyright though?
A lot of production cars are very similar in basic shape, squint a little and the car you are looking at can be one of 3 or more
Would a detail such as windscreen rake or addition of side repeaters to a replica (not on original) be enough to get around the copyright?
Reply With Quote
  #11  
Old 16th February 2021, 10:24
Lucky@LeMans Lucky@LeMans is offline
Senior Member
 
Join Date: Aug 2012
Posts: 1,904
Lucky@LeMans is on a distinguished road
Default

Quote:
Originally Posted by NeilF355 View Post
Agreed, but this is the bit that worries me - If they do succeed in establishing that a car design is a "work of art" then all car designs would fall into the same category and therefore have this same copyright protection currently enjoyed by works of art, musical compositions, books and plays.

This type of copyright is automatically applied and lasts for the life of the originator and to the benefit of his/her estate for 70 years after his/her death.

Meaning that virtually all replicas, such as cobras, lotus 7s (except maybe caterhams) Ferrari and Lamborghini replicas etc. will be in violation of this copyright
Might depend if you have an exact toolroom copy, accurate in every last detail or something that is just a similar shape on the outside. Most kits and replica's fall into the latter. Take a tape measure to most and they will be miles out in just about every dimension. For the most part they will have a very different chassis and running gear too.

Last edited by Lucky@LeMans; 16th February 2021 at 10:28..
Reply With Quote
  #12  
Old 16th February 2021, 10:35
Mister Towed's Avatar
Mister Towed Mister Towed is offline
Senior Member
 
Join Date: Jul 2011
Posts: 5,222
Mister Towed is on a distinguished road
Default

The 'art or design?' argument muddies the waters somewhat as the length of time the item under discussion is protected is substantially different between the two.

If the item is an industrial design then its protection is decades shorter than if it's art, especially if it's been out of production for many years.

But, if it's art rather than industrial design, then the rights stay with the creator, even if they were employed and/or paid by someone else to design/draw the original.

So, if a car is an industrial design, then the design protection has lapsed for just about anything we're likely to build a replica of.

But, if the same car is art, then the original artist (designer), or their estate if deceased, owns the ongoing rights to the design, possibly unless their original employment contract explicitly stated that they passed all rights to their designs on to their employer.

That would mean that the rights to the C Type design lay with Malcom Sayer's estate, while the rights to most Ferrari models would belong to whoever penned them at Pininfarina, even if Pininfarina paid the designer to draw them and Ferrari paid Pininfarina for the work.

But are these cars art and what is art anyway? The dictionary can help here:

Art
noun
1. The expression or application of human creative skill and imagination, typically in a visual form such as painting or sculpture, producing works to be appreciated primarily for their beauty or emotional power.

Hmm, '...works to be appreciated primarily for their beauty or emotional power'.

So, the C Type was designed to win motor races, not as a work to be appreciated primarily for its beauty or emotional power, ergo, it's an industrial design, not a work of art, no matter how pretty it is.

The same goes for every other Jaguar, every Ferrari, Porsche, Maserati, Lamborghini, etc., etc. Every single one was designed to be a means of transport - some to win races, some to allow the rich and famous to display their wealth through conspicuous consumption and some just to get a driver and passenger(s) from A to B in speed, comfort and style.

I do, however, believe that some cars definitely fall into the category of art as defined in the dictionary, but these are exceptionally rare.

Take the work of George Barris, for example. Many of his creations were definitely intended to be appreciated primarily for their beauty or emotional power, as they're often just too bonkers to be considered just a means of transport. That might well also apply to most of what we do. I for one built my Spyder not as a means of transport or to win races, but as something to be appreciated for its looks and the emotional response it elicited in me every time I opened my garage door, and pretty much everyone else who saw it, which would indeed qualify it as art.

And finally, in order for a design/art copyright to have been breached in law, the replica has to be an almost exact copy. Take the Caterham vs Westfield litigation, for example. The case was settled out of court, but resulted in Westfield having to make only minor changes to the car - a slightly wider cockpit, an integrated nose-cone and fibreglass body construction instead of aluminium - in order to carry on building and selling their cars in competition with Caterham.

I just hope that the Swedish decision is overturned and that this doesn't become an issue for our hobby in the UK.
Reply With Quote
  #13  
Old 16th February 2021, 11:27
oxford1360 oxford1360 is offline
Senior Member
 
Join Date: Mar 2012
Posts: 1,146
oxford1360 is on a distinguished road
Default

Mr T, you are applying logic and it all makes sense. However...

In previous employment, I sought advice from a QC who advised the Privy Council. I asked him a question to which he replied, "Well, there are two answers to that." I said, "Don't tell me, one is yes, and the other is no." His reply..."You are learning fast, laddie."

And there lies the problem: Two sets of lawyers who will make money whatever the outcome.

I have no issue with lawyers. It is their job to argue, and I suspect that this type of case is their natural habitat.
Reply With Quote
  #14  
Old 16th February 2021, 12:58
Lucky@LeMans Lucky@LeMans is offline
Senior Member
 
Join Date: Aug 2012
Posts: 1,904
Lucky@LeMans is on a distinguished road
Default

I would think its a case of each and every case that goes to court would be considered in an individual way. Some cars are more like for like copies, others are inspired by lookalikes, others are squint at 50 yards to see if you can guess what it is !
What are those Bugatti Type 35 replica's with a rear mounted VW engine all about, do they count in this discussion ? What about the Teal type 35 which is about 30% bigger than the real thing ?
A lot of grey areas to keep the lawyers in work for years, this isn't an open and shut case for the replica industry.
Reply With Quote
  #15  
Old 18th February 2021, 16:01
Mister Towed's Avatar
Mister Towed Mister Towed is offline
Senior Member
 
Join Date: Jul 2011
Posts: 5,222
Mister Towed is on a distinguished road
Default

This case is covered in a two-page article in Octane magazine this month. It's interesting reading so I suggest you go buy a copy or subscribe (there, hopefully Octane won't pursue me for breach of copyright for repeating some of what they found).

JLR state that they brought the action due to the accused party allegedly planning to build and sell seven examples priced in excess of a quater of a million Euros each. The accused claimed that he was building a single replica for his own use, but lost the case and is liable for JLR's costs of £450,000 plus any damages that may be awarded. Ouch.

The ruling means that it could also be immediately applied across all EU countries, but that it would not be enforceable in the UK without separate legal action, which would likely be much harder for JLR to win.

JLR did state that they have no plans to pursue owners of pre-existing replicas (there are estimated to be at least 1500 extant), but will prevent businesses using their intellectual property illegally for profit. I guess that means you may be able to sell your C-Type replica privately, but not if you're a car dealer.

As for how this might actually affect me, I'm currently building a 356 Speedster replica and I'm just crossing my fingers that Armitage Shanks don't bring a legal action against me for blatantly copying one of their upturned bathtubs.
Reply With Quote
  #16  
Old 19th February 2021, 11:39
Mister Towed's Avatar
Mister Towed Mister Towed is offline
Senior Member
 
Join Date: Jul 2011
Posts: 5,222
Mister Towed is on a distinguished road
Default

Just a thought, but JLR won the case that the vehicle infringed their copyright to the external shape of the C Type.

That suggests to me that the destruction order should only apply to the outer panels, not the chassis, drivetrain, dash, seats, wheels, etc., etc.

So, if you're building something similar and JLR start making cease and desist noises, I'd suggest stripping off those Jaguar panels and putting the pretty sweet 'moon rover' that's left under another body with unique styling. I'm sure Tribute's A352 or Gary J's Formosa 120 could fairly easily be made to fit the 96" wheelbase and either would result in a pretty impressive car.
Reply With Quote
  #17  
Old 19th February 2021, 14:04
Lucky@LeMans Lucky@LeMans is offline
Senior Member
 
Join Date: Aug 2012
Posts: 1,904
Lucky@LeMans is on a distinguished road
Default

I haven't read the article in Octane but I assume that with the 250,000Euro price tag these C Types were like for like exact copies. I can understand the reasons behind the legal action even if I don't agree with the outcome.
I would imagine the likes of JLR not being interested in our cars that are for the most part, inspired by lookalikes. Would they really come around with a destruction order on a Triumph Herald based lookalike with a few hundred quid invested in it ?
The way its going you won't be allowed to paint your car in British Racing Green because they own the rights to the colour. Likewise you might want to stay away from Rosso Corsa or any shades of red for your F***** inspired special

Last edited by Lucky@LeMans; 19th February 2021 at 14:13..
Reply With Quote
  #18  
Old 20th February 2021, 10:57
NeilF355's Avatar
NeilF355 NeilF355 is offline
Senior Member
 
Join Date: Sep 2011
Location: Teesdale
Posts: 221
NeilF355 is on a distinguished road
Default

Quote:
Originally Posted by Mister Towed View Post
Just a thought, but JLR won the case that the vehicle infringed their copyright to the external shape of the C Type.

That suggests to me that the destruction order should only apply to the outer panels, not the chassis, drivetrain, dash, seats, wheels, etc., etc.
I think you are correct, The court documents https://drive.google.com/file/d/1bTb...Z_bPvI8eP/view state

"It is apparent from the investigation that the body of the replica car at issue in the main
proceedings is an infringement of JLR's copyright. The specimens to which the application for corrective action is addressed are shown in Annex A to D. As regards the replica (Annex A) it can be concluded that the body work is the essential form element with regard to the infringement. According to the Court, therefore, it is a sufficiently restrictive measure for the remedy to be confined to the bodywork.
The study also shows that it can be removed from the replica in general."


Quote:
Originally Posted by Lucky@LeMans View Post
I haven't read the article in Octane but I assume that with the 250,000Euro price tag these C Types were like for like exact copies.
Correctly shaped and dimensionally accurate aluminium panels were hand made for the replica. The chassis was a bespoke one which looks similar to but not an exact replica of the original C type chassis. The engine is an XK twin carb as per the original.
Reply With Quote
  #19  
Old 3rd April 2021, 09:12
Lucky@LeMans Lucky@LeMans is offline
Senior Member
 
Join Date: Aug 2012
Posts: 1,904
Lucky@LeMans is on a distinguished road
Default

More news in Classic and Sports Car magazine today. Most references were aimed at the high end "toolroom" copies. Whilst no conclusions were forthcoming it looks like the whole area is a can of worms and will rumble on for years ! Much of the comment pointed towards some of the high end copies being sold on as the real thing in the past ! Certainly a case for coming up with new designs and avoiding new like for like copies coming to the market in the future. I can see designs like the Formosa becoming more popular in the future for that reason.

Last edited by Lucky@LeMans; 3rd April 2021 at 18:57..
Reply With Quote
  #20  
Old 7th April 2021, 21:24
Dpaz Dpaz is offline
Senior Member
 
Join Date: Apr 2011
Posts: 260
Dpaz is on a distinguished road
Default

I seem to recall a while ago that the new owner of Lotus was going to get stroppy with Seven forgeries. It does seem a bit of a cheat to copy someone else's design rather than design your own. Says he with a LocUst!
Reply With Quote
Reply


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT +0. The time now is 12:38.

copyright © madabout-kitcars.com 2000-2021
terms and conditions | privacy policy