Kitting and Design rights!

[John Sunderland]

 . I have no genuine idea who decided who gets to do what with any one airplane design, such as kitting, or short kits or resale of plans etc. However, over the last decade I have been approached several times about kitting MY airplane.

Somewhere along the line when folks failed to make good upon requests of me to actually "do it!" and even though I accepted, there seems to be some illusion as to who "owns" the rights to sell it. This bothers me a good bit! I signed no written contracts to do this and since not even one test kit was ever produced, that verbal agreement is null and void in my opinion. However, legally I really dont know.

Surely some of you other designers have been approached over the years and i would like to hear your thoughts on this subject.

  John A. Sunderland

[John Miller]

Hi John, I'm no lawyer, but if nothing was done in the way of production, follow up, or something of value given, a verbal agreement would not seem to have any merit.

[Tim Wescott]

John, I'm also no lawyer.  But (as my lawyer has pointed out to me) an unwitnessed verbal contract is worth at least 1000 times the paper that it's printed on.  IOW -- nothing.

Your rights to something you've designed are smoky at best.  You can copyright plans that you produce, but you can't copyright the thing made from those plans.  You can trademark the name, and you can patent any innovations that you've made that are particular to the thing you've made.  But unless you do those (expensive) things, there's nothing but courtesy to keep someone from going ahead and producing 'your' design with plans that they've drawn up.

It gets worse: none of this gets backed up by the courts unless you sue -- and that costs money.  You can get a lawyer to write a 'cease and desist' letter, but if the recipient thumbs his nose at you then you're out of luck.  Probably your best bet if you suspect (or know) that this is going to happen is to threaten to tell the world that they're producing the kit without your permission, help, or advice.  Then at least they'll know that their efforts will be tainted in the public mind if they proceed.

There's information about this out on the web, if you want to dig for it.  Start with "copyright" and "trademark", and go from there.  If you really feel strongly about it, try to locate a lawyer who does copyright and trademark work, ask them how much they charge for an hour's worth of advise, then decide if you want to know badly enough to pay for it (figure that it's going to be a few hundred bucks).

And next time -- get a written contract.  It doesn't have to be much, and it doesn't have to cover every contingency.  If everyone's being reasonable it'll be short and friendly.  Just set out your conditions, like "kit must be on the market by such-and-such a date or this contract is void", etc., and make it clear in all your conversations that no verbal agreements mean squat -- that it's got to be on paper, signed and dated before you'll put any weight on anything.

Alternately, just release your designs into the public domain, and don't bother.

[LARRY RICE]

Tim is right on.

At Black Hawk Models we always get permission from the designer (if he is alive) and will never produce any kit that a designer says "NO" on.  There just to many designs that are available to worry about one.  Sometimes we get permission only to discover that it is to costly to produce the design or that there is too little interest if to be profitable.  We always include a provision that we are allowed to alter the design in any way that we feel is necessary.

Larry

[Brett Buck]

. I have no genuine idea who decided who gets to do what with any one airplane design, such as kitting, or short kits or resale of plans etc. However, over the last decade I have been approached several times about kitting MY airplane.

Somewhere along the line when folks failed to make good upon requests of me to actually "do it!" and even though I accepted, there seems to be some illusion as to who "owns" the rights to sell it. This bothers me a good bit! I signed no written contracts to do this and since not even one test kit was ever produced, that verbal agreement is null and void in my opinion. However, legally I really dont know.

Surely some of you other designers have been approached over the years and i would like to hear your thoughts on this subject.

    I retained the rights to the one plan of mine that might be considered to have been "distributed". If someone were to kit it, I would certainly require them to provide me the "right of refusal" on the end result, if it wasn't right I wouldn't permit it to be sold. I wouldn't charge anyone for the rights to it or require a fee or part of the proceeds. It all depends on what you agreed to (or didn't).

  If there's no actual contract that says what the kit builder can do, you have retained your rights. The laws are skewed heavily in favor of the copyright holder.

    Brett

[john e. holliday]

John,  that is the quandary I am in now.  I have two kits that are not being produced right now.  The kits did not have full size plans as such.  They are like the old Sterling plans of years ago.  An isometric view of the construction with written instructions.  I have traced the parts and made a drawing of the leading/trailing edges.  Need to go have a print of it all on one sheet.  The kits I speak of are the Cobra and Saber for three line control.  Do I go ahead with it or just forget it and build for myself?

[dennis lipsett]

I 'll carry the discussion a little farther. Do you ever lend a set of plans to a friend or acquaintance and he goes and makes 1 to 5 copies of your plans without asking you permission to do so. If you have given permission then no problem, otherwise your being taken advantage of by someone too cheap to buy his own copies. I had a guy help himself to $80.00 worth of plans and said that he did it to get my copies back to me. I might not have felt ripped off if he had at least asked. Worse this guy was friends with the designer.

[Jim Thomerson]

Just saying, I had pointed out to me that all contracts are verbal, constructed out of words.  This is true of both oral and written contracts.   

[Randy Powell]

Usually, I make 2 copies of plans. One goes on the wall and the other gets cut up into templates. But I don't give them away unless it is my design.

I've had a couple of guys approach me about kitting one of my designs. May happen, may not. Truth is, I don't much care. The plans are out there if someone wants to build it and it doesn't matter to me much if they make a zillion copies of them. I know it matters to others, but I don't much care. Then the other side it, not many guys want to build what I've designed.

[Steve Helmick]

Some companies own "the intellectual property" of their (engineering) employees. From what I hear, Boeing is one of those. Not sure if it covers copyrights, but does cover patents. Does this apply to PW's ImpAct, PW-51 and B-17 Stunter, or Howard's poetry? Dunno, but it would seem possible.

Doc...I met Bob Smurthwait once at a NW Model Expo, and asked him about the plans for those three (Swift, Cobra and Sabre) designs. He said all the data went up in a fire, so (1) he wouldn't have any proof that he created it, (2) he's been dead for at least 10 years, maybe 20, and (3) if anything, he'd be honored that you made the effort to preserve his designs for CL enthusiasts to enjoy. Just do it right, and he'd be tickled pink.  Steve

[Brett Buck]

Some companies own "the intellectual property" of their (engineering) employees. From what I hear, Boeing is one of those. Not sure if it covers copyrights, but does cover patents. Does this apply to PW's ImpAct, PW-51 and B-17 Stunter, or Howard's poetry? Dunno, but it would seem possible.

   No - or at least, almost certainly not. That only applies to work done on company time. They have no claim on what you do on personal time. In some cases, depending on the customer, the company doesn't own it, either, and in general for defense contractors, precious little company money is spent on anything. Essentially everything I have done professionally is probably owned by one or the other government agency.

    Brett

[John Sunderland]

Thanks for your input fellas. I dont want to start a diatribe here and certainly dont want to smear names about. The truth of the matter is, the original Chevelle was a fine performer for me but design changes since then have made it that much better. Its a 15 years old airplane now and designed for conventional power. My first piped version was not the performer that the original was. Truth be told I was never satisfied with that airplane and have made changes since. While I have no problem with somebody kitting my original airplane, several versions that have never been built or were simply just reduced size plans were handed out as my father and I pondered a smaller version. Simply reducing plans does not necessarily make for a great stunt ship and if Its going to have my name on it I want it to be right. In short, the fat airfoil on the original model was made to handle weight loads not ever realized and with a fast airfoil it handled quite differently under piped power and not all of that was good. I always managed top 20 placement with that piped model but the simple predictablity of performance changed and so has our power delivery systems since the mid 90s. Also, our thoughts on airfoil have changed as well. Once I have proven out the changes in the circle, if somebody then decides they want to kit it I would be honored. There is nothing wrong with the original but I am more interested in working with what I know works well now than what I was doing then.

[Steve Helmick]

How would they know that you didn't have a brainstorm while at work, or maybe CAD up a cool new design on your computer during lunch breaks? How could you prove that you had that brainstorm on your own time, for that matter? It seems like it would just depend on how much dinero was at stake, if they find out about it, and how much they wanted it. 

Oooh...we just had a nasty blast of thunder, lightning, and sneaux!!! It's about 38F outside. Ewww.  Steve

[Mark Scarborough]

One point to keep in mind, a contract is not a contract, therefore not binding, unles and EXCHANGE of money, goods , or something of value has been traded. IOW, if you give plans, but dont get anything back, its not a binding contract. There must be an exchange.

[dennis lipsett]

One point to keep in mind, a contract is not a contract, therefore not binding, unles and EXCHANGE of money, goods , or something of value has been traded. IOW, if you give plans, but dont get anything back, its not a binding contract. There must be an exchange.

actually a breach of contract. Quite a different thing.
Dennis

[SteveMoon]

John: I've always considered this a sensitive area where I have tried
to tread carefully with Ultra Hobby Products. I have always directly asked
the designer of a certain plane for permission to kit that plane or even sell
Laser rib sets for it.

We are looking into getting our kit production going again at UHP and
I would be very interested in talking to you about the Chevelle. It's a great
looking and flying plane.

SKteve

[pat king]

John,
Morality and legality says that a design belongs to the designer. Any work done for hire (money or other goods or services are paid) is the property of the buyer. That work should not be sold or given to any other person by the person who did the work, they do not own the rights to that work. I made CAD drawings of your Chevelle 97 for hire. The design remains your property, the CAD file is the property of the person who paid for the work.
If you design an airplane and I do a CAD drawing and make significant modifications to the design, the design of the modified airplane is now mine. The CAD file is mine. If I sell the CAD file the rights are now the property of the buyer unless the sale is conditional with limited rights.

Pat

[Ted Fancher]

Usually, I make 2 copies of plans. One goes on the wall and the other gets cut up into templates. But I don't give them away unless it is my design.

I've had a couple of guys approach me about kitting one of my designs. May happen, may not. Truth is, I don't much care. The plans are out there if someone wants to build it and it doesn't matter to me much if they make a zillion copies of them. I know it matters to others, but I don't much care. Then the other side it, not many guys want to build what I've designed.

Randy,

With due respect to others, not many guys can...at least with the requisite "Powellian Pizazz!" 

Ted

[Randy Powell]

Ted,

I don't know about any pizazz involved (as I sand down the current plane to substrate after a painting disaster).

I recognize that other folks are concerned about maintaining rights to designs and such. I was just pointing out that it doesn't matter to me on my own stuff. I respect that others feel differently which is why I won't copy plans I have for others' designs and give them away.

[Glenn (Gravitywell) Reach]

Just a question and no harm meant but to have any sort of protection (specifically a copyright), don't you have to pay someone to register it, or notarise it in some way to prove its yours?  Simply haveing a name on the page means nothing as anyone can do that.  Even having the original drawing with name and date means nothing.  You would still have to prove in a court of law that the date and name are valid.  That's why I think you need to pay a lawyer or notary.  These are just my thoughts and are no proof of legality.  Just questions I have wondered about for a long time.

[FLOYD CARTER]

Since I don't need any more money, I'm flattered that someone thinks enough of my design work to offer plans that I drew.  John Pond's list includes one of my plans.  I don't know how he got it, but I did send out a few plans to people who requested them.

I've seen many of my designs published in the model magazines.  MA was the only one that actually paid me for my work, and I would have submitted my article without payment.
Floyd

[jim ivey]

i was asked on the original twin boom stab wing. during the course of having it drawn it was stolen .  and it was copied by many including thr king of combat. be aware thier are always low lifes that will steal your ideas. jim

[Jim Thomerson]

If you hire a photographer to take photographs, the photos belong to the photographer, regardless of the fact you paid for them.  (However, a dumb photographer will assert his ownership with a removable sticker.  That is a theoretical statement, you understand.

You are mostly too young to remember the Gatoraid controversy.  The professor who developed Gatoraid had an National Institute of Health grant at the time.  NIH claimed ownership of Gatoraid;  however, University of Florida and the developer made a successful case that he had done it on UF time, not NIH time, and Gatoraid belonged to UF.  I think the developer got a slice of the deal.

[John Miller]

Just a question and no harm meant but to have any sort of protection (specifically a copyright), don't you have to pay someone to register it, or notarise it in some way to prove its yours?  Simply haveing a name on the page means nothing as anyone can do that.  Even having the original drawing with name and date means nothing.  You would still have to prove in a court of law that the date and name are valid.  That's why I think you need to pay a lawyer or notary.  These are just my thoughts and are no proof of legality.  Just questions I have wondered about for a long time.

Hi Glenn, The answer to your questions can be found by "Googling" Copy rights.

You'll find a link to many sites, but the best one is a government site that gives a very thourough review of copy right laws.

[phil c]

Since I don't need any more money, I'm flattered that someone thinks enough of my design work to offer plans that I drew.  John Pond's list includes one of my plans.  I don't know how he got it, but I did send out a few plans to people who requested them.

I've seen many of my designs published in the model magazines.  MA was the only one that actually paid me for my work, and I would have submitted my article without payment.
Floyd

Now Model Aviation owns the copyright for your plan and the accompanying article.  The check surely had something like "Payment for all rights both US and International etc......." on it.  In other words, a contract you made by signing the check.

[Tim Wescott]

If you hire a photographer to take photographs, the photos belong to the photographer, regardless of the fact you paid for them.

Actually I think this is a gray area.  But if the photographer signs a contract specifying that the photographs are a work for hire, and that you own all rights -- then you own all rights (assuming you pay your bill).

[Dick Pacini]

My plane, Spirit of Saginaw III, was published in Flying Models Magazine in the January 1973 issue.  A friend of mine took the pictures gratis.  I did the drawing and Don McGovern of FM did the ink.  I wrote the article.  I was compensated in the amount of $135, with the understanding that FM/Carstens publications owned the rights to the plans.  I think that has been their policy all along, which is probably shared in the publishing world.

Still, the independent cottage industry practice of kitting popular designs seems to thrive unfettered, regardless if they have been published or kitted before.  

EDIT:  I don't mean to cast a shadow on the private kitting industry, or the commercial interests.  I am sure most operate with the permission of the designer if possible.  Apparently, it isn't that difficult to produce a kit without infringing on any copyrights.

Some industries are impossible to penetrate.  For example, Walmart will not instant copy any photograph that has a signature or stamp of the photographer, even if the photo is 100 years old and the photographer long gone.  It is frustrating to have the only photograph of ancestors in existence and not be able to obtain copies.  Of course, you can buy a home color printer and photographic paper and print your own but not quite as good as the Walmart kiosk.

[Ted Fancher]

Ted,

I don't know about any pizazz involved (as I sand down the current plane to substrate after a painting disaster).

I recognize that other folks are concerned about maintaining rights to designs and such. I was just pointing out that it doesn't matter to me on my own stuff. I respect that others feel differently which is why I won't copy plans I have for others' designs and give them away.

Randy,

My comment was only about the unique and special nature of your airplanes.  I have absolutely no opinion regarding "rights" as it comes to model plane design.  I guess now that it is all getting so commercial I should re-evaluate that ho-hum attitude but, truth be known, that whole commercial aspect is a large part of why I have a hard time getting active again.

Put a Randy plane into a mold and anyone can "buy" one.  Give 'em a stack of balsa and only those with "Powellian Pizazz" can get a piece of the action.  That's what always made it worth doing for me.

Ted

[FLOYD CARTER]

I realize that MA "owns" my design, including manufacturing rights. They are selling the plans. Fine with me!  I hope someone DOES turn it into a kit.  I'm not in the kit business.

F.C.

[Jim Thomerson]

I've had photographs published with a onetime use agreement (with pay), and also with a joint use agreement (with pay) so I can do whatever I want with the photo and so can the magazine. I've also had photographs stolen (payment promised, not given.) and published with credits to some other photographer.  This was in dealing with a German tropical fish publication.