A TRIP INTO THE WORLD OF REPLICA CAR DE­SIGN

Dave Brown has cre­ated a busi­ness out of recre­at­ing the old i n metic­u­lously good de­tail. But, Ben Mack asks, i s de­sign­ing some­thing based off some­one else’s de­signs l egal?

Idealog - - REPLICA CARS -

If it looks like a duck and walks like a duck, then it prob­a­bly is a duck, right?

Logic would dic­tate so, any­way. But that’s not al­ways true, of course – es­pe­cially when it comes to de­sign.

Take Dave Brown’s cars. Since 1992, Brown and his com­pany Clas­sic Car De­vel­op­ments have been mak­ing high-end, vin­tage sports cars.

Well, not ex­actly. They’re repli­cas of high-end, vin­tage sports cars. But they look just like, per­form just like and are priced just like the orig­i­nals.

“I just thought it was a good idea, so I went and did it,” Brown says of his start in the early days.

From his work­shop in In­ver­cargill, Brown makes repli­cas of the 1952 Jaguar C-Type, mid-1950s Jaguar D-Type, late 1950s Jaguar XKSS (which is a ver­sion of the D-Type) and 1960s Ford GT.

Brown prides him­self on ac­cu­racy and does ex­ten­sive re­search to make sure ev­ery­thing is ex­actly the same as on the orig­i­nal ver­sions of the ve­hi­cles. “They’ve got to be ex­actly the right shape.”

It’s not easy, at least if one doesn’t know what they’re do­ing. Brown goes off the orig­i­nal de­sign draw­ings, which in it­self can cre­ate chal­lenges. “We re-cre­ate the orig­i­nal parts,” he ex­plains. “It’s not just a mat­ter of get­ting an old en­gine and spruc­ing it up.”

To have a lot of the parts made – such as for the cast­ing, en­gine, sus­pen­sion, and more – Brown gets patents, which also means he can have parts made in the fu­ture. “In the old days that’s how it was done. It’s just like the orig­i­nal.”

There are a lot of patents, too. For the Jaguars he builds, Brown says there are at least 18 patents for the en­gine alone, as well as five for the front sus­pen­sion and two for the brakes.

Brown may be hum­ble, but he’s one of the fore­most replica car mak­ers in Aus­trala­sia. And though he’s based in New Zealand’s Deep South, he has clients from all over the world.

But Brown’s cars raise an in­ter­est­ing ques­tion. Is mak­ing some­thing based off some­one else’s de­signs le­gal?

Ac­cord­ing to Se­bastien Aymeric, an as­so­ciate with New Zealand-based in­tel­lec­tual prop­erty (IP) firm James & Wells, that de­pends.

Aymeric says it’s pos­si­ble to copy­right de­signs in New Zealand. The copy­right, he says, lasts for 16 years, and is eas­ier to ob­tain if there are also de­sign draw­ings to show that a de­sign is orig­i­nal. Af­ter the 16 years, he says, most de­signs are “fair game” for im­i­ta­tion or be­ing repli­cated.

New Zealand’s copy­right laws are not as “ro­bust” as some other coun­tries, such as Aus­tralia or the United King­dom, ac­cord­ing to Aymeric. In Aus­tralia, he says, it’s pos­si­ble to get de­sign reg­is­tra­tion for new de­signs. Aymeric says that adds “an ex­tra layer of pro­tec­tion” against im­i­ta­tion. New Zealand has some­thing sim­i­lar too, he says, but it’s not as strong.

He says there’s also some­thing else to keep in mind. “Copy­right and de­sign reg­is­tra­tion is only for the ap­pear­ance of the prod­uct.”

Aside from copy­right and de­sign reg­is­tra­tion, the Fair Trad­ing Act can pro­tect against de­cep­tive busi­ness prac­tices and ad­ver­tis­ing – such as if some­one is sell­ing an im­i­ta­tion prod­uct, but pass­ing it off as the

real thing, or claim­ing an en­dorse­ment when an im­i­ta­tion de­sign is not en­dorsed by the orig­i­nal de­signer(s).

“Brand­ing then be­comes very im­por­tant,” says Aymeric.

Un­sur­pris­ingly, dis­putes over own­er­ship of de­sign – and whether a de­sign can be copied – is one of the most com­mon types of copy­right dis­putes that wind up in court. One doesn’t have to do too much re­search to find plenty of ex­am­ples, ei­ther. For in­stance, although Lego is by far the best-known maker of plas­tic build­ing blocks and con­struc­tion sets, there are dozens of im­i­ta­tors – and some of them, such as Mega Bloks, make mil­lions of dol­lars an­nu­ally. Mega Bloks has won at least 14 law­suits brought forth by Lego over al­le­ga­tions of copy­ing de­signs. In a land­mark case in 2010, the Euro­pean Court of Jus­tice ruled that the eight-stud de­sign of the orig­i­nal Lego brick (the mod­ern ver­sion of which was patented in 1958) “merely per­forms a tech­ni­cal func­tion [and] can­not be reg­is­tered as a trade­mark.”

Even Lego it­self may be loosely cat­e­gorised as an im­i­ta­tion – at least ac­cord­ing to some people. Al­legedly, the first Lego bricks (which de­buted in 1949, sev­eral years be­fore the “mod­ern” bricks we know to­day) were based in part on the Kid­d­i­craft Self-Lock­ing Bricks, which had been patented in the United King­dom in 1939. Ac­cord­ing to the con­spir­acy the­ory – which it should be noted has never held up in court – Lego founder Ole Kirk Chris­tiansen de­cided to mod­ify the de­sign of Kid­d­i­craft bricks af­ter re­ceiv­ing a sam­ple from the sup­plier of an in­jec­tion­mould­ing ma­chine that Lego had pur­chased.

Aymeric says that when it comes to im­i­ta­tion and replica de­signs, there’s a sim­ple dy­namic at play. “If you’re suc­cess­ful, you’re go­ing to get copied. And if you don’t have pro­tec­tion, you’re go­ing to lose a lot of money.”

The so­lu­tion, he says, is nat­u­rally to pay for copy­right pro­tec­tion and get de­sign reg­is­tra­tion. “It’s part of the cost of do­ing busi­ness,” he says. “There’s a bet­ter aware­ness in the busi­ness com­mu­nity than there was five-to-ten years ago. But there’s still a lot of work to do.”

Back in In­ver­cargill, Brown says he has never had a prob­lem from Jaguar for his repli­cas. In fact, hav­ing made the same ve­hi­cles for al­most 30 years, Brown has been con­tacted by Jaguar be­fore for ad­vice since he knows the cars bet­ter than many of Jaguar’s ac­tual de­sign­ers to­day.

But he’s quick to point out other com­pa­nies, such as Fer­rari, are fa­mous for vig­or­ously de­fend­ing their de­signs, and su­ing any­one who at­tempts to do so. “For­tu­nately I’m on the right side of Jaguar, and they un­der­stand what we do.”

Brown says another thing that has helped him avoid trou­ble is he has never had to ad­ver­tise his busi­ness. Be­cause the client base is so tight-knit, prospec­tive buy­ers know who Brown is, and know how to get in touch.

“This in­dus­try is pretty small. All the buy­ers pretty much know each other.”

Although Brown’s busi­ness in­volves cre­at­ing repli­cas of ve­hi­cles first made more than half a cen­tury ago, and has draw­ings to go off of, he has some in­ter­est­ing ad­vice to de­sign­ers, re­gard­less of what it is they’re cre­at­ing.

“Know how to free­hand sketch,” he says. “All de­sign comes from your head to your hand.”

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