Copyright

[HobbyCAD]

So here we go again, same copyright/patent story. I would still like to know the correct legal interpretation. Why? It’s public knowledge that I have been building a Skeeter Jr helicopter, and have based it on the Cicare CH-6 design. I have utilised some Mini-500 parts that I have privately purchased. Nothing to do with RHCI. The Skeeter consists of new design parts, a low number of original Mini-500 parts, and some adapted parts. Among the newly manufactured parts there are some manufactured exactly as the Mini-500 originals, some are adaptions of original parts, some are of a total new design. I have drawn up every single part of my Skeeter Jr as 3D model parts in SolidWorks. This has never existed before. So, looking above at what parts I have utilised in my Skeeter Jr, some parts are thus 3D models of standard Mini-500 parts. How did I draw up the parts? I utilised dimensions obtained by dimensioning the physical parts themselves, dimensions read off drawings contained in an independently obtained non copyrighted Mini-500 Swiss Load and Stress Analysis Report document, and dimensions read off copies of original drawings obtained from Dennis's ex-wife. I did commit to Dennis that I will use those drawings obtained only to support my helicopter build, and that I will not reproduce and distribute parts in support of Mini-500 helicopters. Now, let me make it clear, none of the source materials I have used or obtained in any shape or form contain any copyright stamp, statement or number, they are simple pages or materials with technical data on them. Most of my printed or copied materials were obtained back in 2008.

What laws have I broken by creating this Skeeter Jr 3D dataset here in my home in Australia? What legal obligations do I have to adhere to as owner of this soft copy dataset? What if I want to sell it one day, is there any legal limitation on doing it?

Waspair says:

Sorry, Dennis, but this is total hogwash.

People don't need your permission.

You have no copyright protection in the design or technology of the Mini-500 because copyright law doesn't even protect such things.

17 USC section 102 (a) restricts copyright to works of "authorship", and lists:

Literary, musical, dramatic, choreographic, pictorial, motion pictures, sound recordings, and architectural works. It doesn't include helicopters or their components. You might have copyright in a drawing here or there, but that only protects the paper drawing itself for its original artistic value (if any), not the parts that are shown in the drawing. Anybody can make a new drawing from the part, and it won't be an infringement.

17 USC section 102 (b) explicitly excludes copyright coverage for any "idea, procedure, process, system, principle, or discovery".

Copyright is intended to protect artistic expression, not functionality of useful objects. The courts shoot down claims like yours every day.

Technology could be covered by trade secrets, but if the helicopters are out there in public use, there's nothing secret anymore, and all protection is lost forever. The public is entitled to reverse engineer any Mini-500 part they wish, unless you have patents on each part or system to stop them, and any patents you might once have held should be expired by now (they were only good for 17 years back when the Mini-500 came out).

Under trademark law, you might be able to stop someone from using the Mini-500 name, but you can't stop people from calling it something else if they wish. If things were different, an argument might be made for trademark value ("secondary meaning") in the shape of the helicopter, but since that's taken from the original Hughes 500 (not your work) you would have a pretty thin claim even to that.

If you have contracts with specific individuals that include promises not to do some things, you can argue about breach of contract for those individuals and those individuals alone. Anybody else can do anything they bloody well please.

You shouldn't bluff and bluster about such things. Attempting to intimidate people by claiming rights you don't have can get you into trouble.

Dennis says:

You are very welcome to contact the US Copyright Department and study my copyright #TX001666431 to see what my ownership covers. No need to speculate.

Dennis had a patent on a rotor control system, but it has since expired. It was for a rotor system only; it was not a patent on any specific part of the Mini-500. I interpret the patent was for the way the rotor control system on the Mini-500 worked, not any part itself.

United States Patent 5,163,815, issued on 17th November, 1992, expiration date 29th July, 2011 for “A rotor blade control mechanism includes a transmission driving a hollow rotating drive shaft, extending through the transmission”.​

Dennis in 2010 applied for copyright on his print book, way after any of the drawings or info I obtained back in 2008. I suspect this copyright applied to the print book he sold John, for John’s printbook had introductory pages stating the book was copyrighted to Dennis Fetters. Each page also contained such a statement of copyright. My data pages contained nothing of the sort, there was only one page that stated the contents was confidential, and for use by RHCI only. No mention of Dennis Fetters copyright on it.

Copyright Registration Number TXu001666431 dated 4th May 2010, for a book titled “Mini-500 and Voyager-500 Design and Manufacturing Prints”. Date of creation 1993.​

I would really like an opinion on if these threats by Dennis are intimidating scaremongering tactics by him to attempt to refrain others from entering the market space he wants reserved for himself, or am I open to litigation for having drawn up my Skeeter Jr in 3D CAD.

Cheers,

Francois

 

[HobbyCAD]

Francois my friend,

You have nothing to worry about.

Thanks Dennis.

 

[WaspAir]

It's all a bluff from Fetters

It's all a bluff from Fetters

Nobody has anything to worry about, unless you're making photocopies of Fetter's book of drawings or have a business contract with him in which you promised not to build anything.

Otherwise, you can build all the Mini-500s you wish, and make up your own name for them, and do what you like with them. And if you reverse engineer and manufacture parts for Mini-500s, you can sell them to Mini-500 owners.

It's no different than making a copy of a J-3 Cub and selling it to the public; Piper can't do a thing about it so long as you don't use their name on it. You can make parts. You can make drawings of those parts. You can sell the parts. You can sell the drawings. You can sell kits. You can produce and sell the complete aircraft so long as you qualify for SLSA status with the FAA. Piper has no trade secrets left in that old, public design, all their patents are long since expired, and copyright doesn't cover the aircraft or any of its functional features.

And you don't need permission from Fetters or anybody else to do it.

 

[WaspAir]

You are very welcome to contact the US Copyright Department and study my copyright #TX001666431 to see what my ownership covers. No need to speculate.

That registration doesn't cover any physical object, such as a helicopter or its parts. I have a registered copyright in a photo I took of an Arabian stallion, but that doesn't make breeding Arabian horses an infringement of my rights; it only means you can't copy my photo of it. The only way to infringe your print book copyright is to put your original drawings on a photocopy machine. It can't be infringed by building aircraft or parts for them. That's plain, clear, well-established, "black letter" law (as we lawyers say), that has been settled and beyond controversy in American jurisprudence for over a century.

Nevertheless, you will have to agree that the Mini-500 kit was built by my factory, and for someone else to change around a few parts of my design while using 98% of the parts "I manufactured" and then having the audacity to rename my design as if it was their new design is simply unacceptable.

Maybe it's unacceptable to you, but there's nothing you can do about it, because it's perfectly legal. The one thing that you could complain about might be using the Mini-500 name; you might have the trademark rights to force them to rename it. But you certainly can't complain if they do re-name it. You've got trademark law turned all inside out if you get mad when people DON'T use your name!!!

I bet if he breaks into your home and steals your property would make it a different story.

That's entirely the point. You don't have much "property" here to talk about.

1) An expired patent is worthless (they can't be renewed).

2) There's no trade secret in things that have been available to the public for decades.

3) Nobody is using any of your trademark names.

4) Copyright only covers your drawings of the parts, not the parts themselves, or how they work, or how they're made.

All that's left is your sense of indignation, and the courts don't much care about that.

 

[WaspAir]

Something can be covered in a copyright without a copyright mark if it is part of a hole that has a copyright..... such as a Mini-500 or Voyager-500 print that is in the package I had copyrighted.

You don't think so? Copy and sell a part of someone’s copyright protected video or song and see who wins.

You can copyright shapes and writings.

A copyright starts at the time of conception, not when its filed.

When you write a song about the Mini-500 and release the video, we all promise not to download it without paying for it.
But you can't copyright the bits of your helicopter.

 

[HobbyCAD]

A copyright starts at the time of conception, not when its filed.

I fail to see how this works. You do an uncopyrighted thing on paper, and allow it to be redistributed. Someone picks up on it, and uses the knowledge learned by looking at this thing on paper, to build another thingy. Years later, the original artist decides to copyright that thing on the paper. Are you telling me the other someone must now stop doing what he did, because the works are retrospectively copyrighted. I fail to see that being the case. If works were not kept under wraps or copyrighted, and goes freely into the public domain, surely a works cannot be retrospectively copyrighted?

Opinion will be appreciated.

 

[PTKay]

WaspAir,

thanks for those clear and professional explanations.

It is very important also in the case Xenon vs. Zenon gyroplanes.

The law in Europe might be slightly different, but from what I understand you wrote,
there is no problem for anybody building a Xenon gyroplane look-alike, until he doesn't
call it Xenon.

So, the bottom line, the kit build ZEN1 or Zenon will be perfectly legal
in the US from the copyright and patent rights point of view.

The claims of Raphael Celier against Artur Trendak are very similar, or the same
like the claims of Dennis Fetters against John.
And, according to what you write, they are without any substance as well.

Raphel Celier was signing his gyroplanes and all his claims are based on
copyright law, which according to your above posts, in the US explicitly
exclude any technical solutions.

This is a big relieve for all interested in introducing ZEN1 to thr US market.

I hope I understood your statements properly.

Thanks

Paul

 

[RotorTom]

Waspair has already answered your questions here. He did an excellent job of laying out the facts.

If Dennis has a specific contract with someone and they break it ... that is a breach of contract claim - nothing else.

Dennis is very confused about his so-called "rights" and "protections".

 

[Barney Bahle]

I've got a question for WaspAir. Lets assume this is a print book, would the copyright appear on each print or just on a cover page like in a book?

 

[Doug Riley]

It's important to realize that current U.S. copyright law (which is a unit within a large international treaty on the subject) provides that ALL writings are copyright-protected at the time of their creation WITHOUT registration or notice. Registration merely creates a public record of what already exists -- the author's right to prevent copying. Registration gives the author a ticket to federal court, and allows him/her some extra remedies. But the essential "right to prevent copying" exists regardless of registration. My hand-scribbled written notes of my phone call with you are copyright-protected.

That said, the "copying" that can legally be prevented/stopped by the author is the reproduction of any significant portion of the written work. Building a part shown on the plans is not a copying of the written work (the plans). Running the plans through a photocopier IS illegal without the author's permission.

A current, valid patent protects the unique functional features claimed by the designer, to the extent the Patent Office accepted these claims. A design patent covers unique non-functional features.

There's also a vague concept out there called "trade dress." This is not a registrable form of intellectual property, but the courts do recognize it anyway. If a business owner created a unique "look-and-feel" for his/her business, then he/she might be able to stop a copycat. Theme restaurants with unique decoration, menu and service style can be protected this way.

I don't know that any rotorcraft manufacturer has ever succeeded in such a claim, but it might be possible to sue over the copying of a given craft's unique look and feel, as long as these items weren't simply necessary to the technology (e.g. conventional streamlining is nobody's private property).

 

[WaspAir]

You do an uncopyrighted thing on paper, and allow it to be redistributed. Someone picks up on it, and uses the knowledge learned by looking at this thing on paper, to build another thingy. Years later, the original artist decides to copyright that thing on the paper. Are you telling me the other someone must now stop doing what he did, because the works are retrospectively copyrighted. I fail to see that being the case. If works were not kept under wraps or copyrighted, and goes freely into the public domain, surely a works cannot be retrospectively copyrighted?

It's important to realize that current U.S. copyright law (which is a unit within a large international treaty on the subject) provides that ALL writings are copyright-protected at the time of their creation WITHOUT registration or notice. Registration merely creates a public record of what already exists -- the author's right to prevent copying. Registration gives the author a ticket to federal court, and allows him/her some extra remedies. But the essential "right to prevent copying" exists regardless of registration. My hand-scribbled written notes of my phone call with you are copyright-protected.

Dennis claimed in another post that copyright begins with conception, but he's confusing bits of patent law where the terms "conception" and "reduction to practice" were used frequently to measure who invented first. The counterpart for measuring time of creation in copyright law is complex in wording but simple in idea.

U.S. law specifies that copyright subsists from the moment of fixation in any tangible medium of expression -- which when translated into ordinary English means that making up a poem in your head, or picturing a drawing in your mind isn't enough, but once you put it on paper, or sculpt it out of clay, or record it on a CD ROM, you are entitled to copyright as of that instant, and continuing forward in time for as long as the law allows (which can be over a century for copyrights, in contrast to no more than twenty years for patents). For many, many years the U.S. required a notice be placed on all distributed copies, but the law was changed in recent times to comply with the international conventions that Doug mentioned, and the notice requirement was quietly dropped. There are still good reasons to use a notice, but you don't have to, and you don't lose all your rights if you don't put on a notice.

Since that change in the law, one should always assume that anything you see is subject to copyright by somebody, if it is the kind of thing that can be covered by copyright. And that last bit is what I've been on about here. Copyright covers original artistic expression, not function or utility of objects.

If the Mini-500 had been a sculpture that Dennis made, and we were all artists here looking at another sculpture of a helicopter that someone had made after seeing the Fetters effort, we might have something to argue about. But it's a machine, and everything of concern here is "useful" legally. (Note: that doesn't mean that a Mini-500 is a practical helicopter, but just that it is intended to do a job, not be admired in a gallery.)

"Public domain" amounts to a legal conclusion that rights or potential rights under copyright that once existed no longer do, so that the public cannot be fenced off from copying a work freely. That can come about for several reasons, such as expiration of the copyright term, publication without notice before the law was changed, and so on. If something wasn't copyrightable in the first place, then strictly speaking the term isn't appropriate. Shakespeare's Macbeth has entered the public domain, but bevel gears or torque tubes or swash plates were never copyrightable to begin with.

I've got a question for WaspAir. Lets assume this is a print book, would the copyright appear on each print or just on a cover page like in a book?

That's the author's choice. If you have a compilation of works that could be copyrighted separately, but they are distributed together in a single binding (like an anthology of 20 short stories, or a set of 50 drawings) then generally a single notice on the group will be enough to get the legal benefits of having a notice.

But if we're talking about helicopter bits, and you make your own drawings directly from those bits, that's not an infringement of the first copyrighted book of drawings, because you didn't "copy" from them. You could take your new set of drawings and register them under your own copyright, if you wished. Just as other people could take pictures, make sketches, paint, or photograph the same Arabian horse I mentioned above, you can always make your own work; my copyright means only that you can't makes copies of my photo of that same horse.

 

[Gyro_Kai]

Hello,

very inersting subject indeed.

How do design patents fit in here? Apple had a patent on a rectangular with round corners (duh?).
Furthermore Apple has a patent of how a scrollable list of items or pictures springs back (rubberband), when you reach the end.
There are more than one option to solve the task, but apparently the particular Apple way could be patented and holds in some courts.

Kai.

 

[WaspAir]

In the U.S., there are utility patents and design patents. Utility patents are the ones most commonly encountered, and they protect technical innovations, such as a new pharmaceutical compound, or a process for etching silicon chips, or clever new type of tool, and so forth.

Design patents cover new and original ornamental features of manufactured articles, not the technical aspects. They're good for a maximum of 14 years. Coverage provided by these is relatively narrow, because a small change in appearance will take you outside the patent even if it still works exactly the same.

To get a copyright, all you have to do is create the work. If it's your own original work, you have a copyright in that automatically. Someone will infringe it only if he copies from your work. If he independently makes something similar, it's not an infringement.

To get a design patent, you have to apply for it, and it has to be examined and compared against what others have designed in the past. If it's not new, your application should be rejected. Once granted, infringement doesn't require copying. If someone copies, he infringes, but it can also be infringed by somebody who never saw your patented design, but merely stumbles onto the same look independently.

Apple is using design patents to throw every possible roadblock in Samsung's way. Apart from any damages ($) the court might award, the cost of changing the design, re-tooling, and so forth is expensive and slows the competitor down, which can be a big lever in the marketplace. The infamous rounded corners dispute is a design patent. The rubber-band functionality in the user interface is a utility patent.

To my knowledge, Fetters never got any design patents for the ornamental aspects of Mini-500, and it would have been difficult to do so for several reasons, such as lack of originality, given the "real" 500 made by Hughes, and aerodynamic and functional requirements dictating design elements rather than aesthetic value. In any event, small changes in appearance would avoid infringement, even if the workings were absolutely identical.

 

[WaspAir]

P.S. for Kai

P.S. for Kai

Just for clarity, the U.S. has no equivalent of the "utility model", or Gebrauchsmuster that one encounters in Germany and Austria, so I haven't mentioned those here.

 

[PTKay]

Just for clarity, the U.S. has no equivalent of the "utility model", or Gebrauchsmuster that one encounters in Germany and Austria, so I haven't mentioned those here.

I think we have the equivalent of the "utility model", or Gebrauchsmuster in Poland as well.
It is called "wzór przemysłowy", or "industrial design".

For example Artur Trendak has filed for such protection in 2011 for his
design of the new ZEN1 cabin. (To be seen here: www.celieraviation.eu )

According to what WaspAir writes, this has no application in the US whatsoever.

 

[Gyro_Kai]

Thanks a lot Waspair, very enlightening.

So if either Dennis or Raphael would have wanted to better protect their ideas and original designs, what would have been the right way?

If I understand correctly, Dennis is out of the game due to the time passed already.
My assumption would be that Raphael should have had a contract in place to subcontract to Artur production as well as engineering services.
A waiver in the contract should have avoided any passing of ownership of "looks" as well as technical solutions to the subcontractor, even if made by Artur, correct?

Yes, Gebrauchsmuster was, what I had in mind.

Kai

 

[PTKay]

WaspAir,

another question:

what about a contract putting a "know how" into a joint venture, and not
"contractor-subcontractor" kind of relation?

Is "know how", without a patent or "registered design" protected in any way?

 

[WaspAir]

So if either Dennis or Raphael would have wanted to better protect their ideas and original designs, what would have been the right way?

Dennis probably got all the protection he was entitled to get, but he just wasn't entitled to much, based upon the level of innovation in his work.

Design, engineering, hard work, promoting, and inventing are all different things that may or may not be present at the same time or in the same amounts. The Mini-500 appears to have held out the promise of cheap, accessible vertical flight to many, but that's not the same as advancing the state of the art or contributing significant technological progress, which is what the patent system is intended to encourage and protect.

From what I've seen, it appears that only one patent arose from the Mini-500 effort. Was that one important? Well, the way people in my business evaluate such things would be to ask questions such as this:

1) Did other manufacturers license the patent from him?
2) Did it generate a significant cash flow of royalties?
3) Was it traded with competitors for rights in other technology?
4) Did it spark a significant design-around effort in the industry?
5) Did he successfully defend the validity of the patent through the courts?
6) Is the patent frequently cited in technical papers, or in other patents?
7) Did it take market share away from established manufacturers?
8) Now that it is expired, is there a rush to adopt the invention by others?
9) Did it spark research efforts to improve and expand on the invention?

and so on. And my impression is that the answers to all those questions would indicate that this was not exactly a giant leap forward for mankind. Patent rights are always limited in time, and often limited in impact.

If you can package something at a price point that brings in buyers, your reward is the money you get from those buyers. You don't automatically also get the legal right to exclude other people from cutting in on your business, copying your business plan, or copying your product. Under such circumstances, the way you stay ahead of the competition is to keep the customers happier with you than with others.

The whole controversy seems strange to me. My understanding is that the business is defunct, that Millennium is trying to improve and resurrect a moribund product with a spotty reputation at best, and that essentially nobody flies those things anymore. I've seen some parked in corners here and there, but never, ever, seen one fly. I've asked a few times on the forum if anyone has actual seen one not touching its own shadow in the last 90 days, and nobody has ever replied affirmatively. For contrast, I've personally flown three different A&S18A gyros (out of the 68 they built way back in 1965) in the very recent past, and I think that may well be more airworthy examples than are left from the whole fleet of hundreds of kits sold twenty years ago for the Mini. It's surprising to see it still generate such heat in general; for me, the heat comes from public bullying tactics that misrepresent the law.

 

[WaspAir]

Is "know how", without a patent or "registered design" protected in any way?

Generally, your only option is to keep it as a trade secret, with contractual obligations on the others you work with to maintain that secrecy. You can put contractual obligations of all sorts on people, and enforce that through contract law if they agree to the contract.

However, some things can't really be kept secret if you have products out where the public can see and touch them. If you sell an object, you might have a special casting process to make it that can't be figured out from the product itself. But if somebody can figure out a way to make an equivalent product with lathes and milling machines, or if somebody finds a different way to cast it, or if somebody comes up with your own method through experimentation (not through stealing data from your plant) you can't stop that.

 

[DennisFetters]

=RotorTom;
Dennis is very confused about his so-called "rights" and "protections".

I'm sorry, but where do any of you think I'm confused?

Out of what I posted about this, how do you deduct I said all of this?

As usual, a bunch of you have taken a few sentences and stretched it into an out of context theory trying so say I said something I did not.

Please do not put words into my mouth! You may take what I said as I said it and please stop making up crap that I didn't say.