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?

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.”