Archived from groups: comp.sys.ibm.pc.games.flight-sim (
More info?)
H iHiawatha:
On 22 Feb 2005 11:57:33 -0800, "Hiawatha Bray" <watha@monitortan.com>
wrote:
>Hello again. I pop in with a question from time to time. Here's my
>latest.
>
>I've recently heard that concerns about copyright are preventing
>software designers from including certain military aircraft in their
>flight sims. People who make those add-on packs for Microsoft Flight
>Simulator, I'm told, have been scared off the idea of doing models of
>well-known fighters, bombers, transport planes and the like. They're
>afraid of having to pay hefty royalties to the makers of these planes.
>
>Has anybody here ever heard of such a thing? If so, please contact me
>ASAP with details. Thanks much.
That's not quite right... the issue is not with flight-sim, but with
scale models of the actual aircraft in question.
Here's the article in question:
Posted on Sun, Feb. 20, 2005
Model-making firms object to defense royalties
TONY GNOFFO
Associated Press
PEMBERTON TOWNSHIP, N.J. - Michael Bass fought this battle before -
and lost.
In 1990, Bass, who imports and distributes products for hobby shops,
took on the Big Three U.S. automakers.
Now the South Jersey businessman is taking on a chunk of the
military-industrial complex - including Lockheed Martin Corp. and
Boeing Co.
The issue is similar: Should companies that make models of military
aircraft pay royalties to defense contractors for the use of their
creations?
Or, should the model aircraft be exempt from such royalties because
U.S. taxpayers funded the development of the real things?
Bass' 1990 effort to stop automakers from claiming such royalties
fizzled, largely by default. Fearing lawsuits from the likes of
General Motors Corp. and Ford Motor Co., the model-makers gave in, and
started coughing up fees of 5 percent to 10 percent of their wholesale
prices.
That opened a floodgate of successful royalty claims, according to
Bass and other members of the International Model Manufacturers
Association. Now, makers of almost all model trains, planes and
automobiles pay royalties to the makers of the actual vehicles.
But the model-makers still did not pay royalties on their replicas of
U.S. military aircraft. Those models were not specifically excluded;
the aircraft manufacturers just did not ask for the royalties.
Now, they are asking.
Bass' company, Stevens International in the Magnolia section of
Pemberton Township, is not a manufacturer, so it would not pay the
royalties directly. But manufacturers would likely pass the costs on
to Bass, and he would pass them on to his customers. And the retailers
would pass them on to consumers.
That is an ugly chain of events for an industry that has suffered from
an abundance of competition for Americans' leisure-time activities.
"The industry is under a lot of pressure," said Ed Sexton, vice
president of product development at model manufacturer Revell-Monogram
of Northbrook, Ill. "We compete ... with video games, TV, the Internet
- however people can spend their leisure time."
With each new generation, he said, there is less interest among young
people in activities that require sustained attention. The average
model builder these days is a 45-year-old male, said Bob Hayden,
executive director of the model manufacturers association.
"There are very few kids I know out there who ... can really do
intricate detail work," Hayden said. "It doesn't come naturally; it
takes practice, and it takes time."
The royalty demands do not always come from defense manufacturers, he
said. Often, the claims are pressed by third-party licensing agencies
that take a cut of the fees they collect on the behalf of trademark
owners.
Among the more aggressive of them, people in the model business said,
is a San Diego firm called Equity Management Inc. Company executives
declined to be interviewed. Inside his jam-packed, 40,000-square-foot
warehouse on the White Horse Pike last week, Bass said the model
industry had been on the wrong end of a power shift.
"When my father started in this business 40 years ago, these companies
were saying, 'Please, make a model of my airplane.' Now things are a
little tougher for them, and they're going after these little
companies."
A Boeing spokesman said the firm was merely trying to protect its
interests, and consumers.
"We want to ensure that accurate, high-quality representations are
provided to the public so that Boeing's reputation for precision and
quality are maintained," said spokesman David J. Phillips. "While we
do charge a small royalty fee, it is only to offset the administrative
costs of these licensing activities, not to make a profit."
No lawsuits have been filed, but the model-makers fear that if they do
not pay, they will be crushed by the defense contractors' legal
horsepower.
So instead of going to court, Bass, a member of the manufacturers
association's board, has taken the case to the public and to his
congressman, Rep. Robert E. Andrews, D-N.J.
"We hope to get Congress to make a law or regulation, or that by
letting the sunshine in ... the Department of Defense and the
manufacturers would see the light," Hayden said.
A spokesman said Andrews promised to ask Secretary of Defense Donald
Rumsfeld for a clarification on the question of who owns the rights to
the images of the planes - the manufacturers or the government. But
according to several legal scholars and Boeing, it will not be
necessary to distract Rumsfeld from more pressing matters to answer
that question. Courts and statutes clearly establish that contractors
can retain intellectual-property rights to the ideas and products they
develop for the government, said Doris Long, professor of intellectual
property and Internet law at John Marshall Law School in Chicago.
Still, said Long and other legal scholars, the claims must adhere to
trademark laws that apply to everyone else. And while anything can
happen in a court of law, they said, the model manufacturers might
have a stronger argument at their disposal than the one they are
using.
Claims of trademark protection on product design come under an area of
law called "trade dress," Long explained.
To prove it had trade-dress protection, a manufacturer such as Boeing
would have to show that there is some distinctive and nonfunctional
element of the aircraft design that makes it clear it is Boeing's
product.
"A good example of that is the grille of a Rolls-Royce," said Roger
Schechter, a law professor at George Washington University.
Because there is no Boeing grille on military aircraft, it would be
hard for the firm to establish trade-dress rights, the professors
said. Model-makers generally do not put aircraft manufacturer's names
or logos on their products, or on the packaging, Bass said. It's
largely because those names and logos are not present or prominent on
the real aircraft, he said.
Long said Boeing would be in an awkward position if it had to prove
trade dress, because the aircraft are supposed to be purely
functional. The company would have to "prove that the design has some
nonfunctional element that says, 'This is my brand.'"
Even then, Schechter said, aircraft manufacturers might have their
work cut out for them.
"Assuming I have trade-dress protection," he said, "I'd have to prove
.... that people who buy the models think that they are buying models
made by Boeing or Lockheed.
"I don't think people are likely to think that a big company like that
is branching out into the model-making business."
***
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Tom G, Sr.
>Hiawatha Bray
>Technology Reporter
>Boston Globe
>135 Morrissey Blvd.
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>watha@monitortan.com
>Blog: www.monitortan.com
>Recent writings: www.boston.com/business/technology/bray
>
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