Maybe this should be the time to stand up as a class and vote for conserving our sport and fending off our own exploitation by ILCA sanctioned builders? If we found out just what these design rights are, maybe there could be such a thing as a royalty free OD boat? Or we could make an offer as a class and buy the right ourselves. How powerful is the ILCA?
An offer was made, unfortunately rejected. The bottom line is that the price is much higher than ILCA can afford.
Something which I hope everyone appreciates.
It is the existence of this IP, and its judicious protection, that has allowed the Laser class to exist as a strict one-design class for the last 40 years. As sailors, we pay a premium in terms of a royalty or license fee to the owner of the IP. In exchange, we get a tightly-controlled class which would not be possible with the multiple-builder model employed in other classes.
Does it create a "monopoly"? To a degree, yes. But it avoids the hardware wars often seen in those multiple-builder classes. The owner of the IP must ensure that the monopoly does not result in explotation through unreasonable prices. Otherwise the market will dry up, and the IP will be worthless.
To me, having the IP owned directly by a builder circumvents this check-and-balance. Conversely, having it owned by the class association could easily lead to multiple-builder hardware wars.
"I am amazed that this has come up. I made a very considered choice as to who I would like to look after the rights of the designer, builders and Laser sailors. I chose the Spencer family because they are long time builders. They are financially secure and have been dedicated sailors for generations. It’s not something I did lightly and I did it for the good of the class."
Based on the interview with Bruce Kirby, it looks to me that Heini Wellmann should resign ASAP for conduct detrimental to the Class. I would like to know what Jeff Martin's role in this 'saga' is, before expressing an opinion about his role.
I'm an interested 3rd party, with no dog in this fight. Don't own a Laser, don't sail a Laser, no commercial interest. However I am a class officer of a one design class that has faced a similar sort of problem, so I have some first hand experience with a nearly identical issue. The multiple trademarks rights are an interesting wrinkle though
There are a couple of key things to keep in perspective here:
1. Hull copyright is the US lasts 10 years from date of design publication or production, UK is the apparently same. I'm not 100% certain about the rest of the world, but my understanding is most countries are no better, or will abide by the home country. This hull copyright was Bruce Kirby's intellectual property (or Bruce Kirby Inc.). It has expired and most likely unenforceable anywhere in the world. This is what the ILCA says, and I believe they are correct.
2. This hull copyright is what entitles a designer to demand and receive a royalty payment on boats when built. Once it has expired, the designer has no independently enforceable right to collect a royalty.
3. The current ILCA fundamental rule essentially has extended the hull copyright/royalty agreement, by requiring that builders abide by the "Kirby agreements". This value is what Kirby sold to GS.
So, regardless of the reasons, this essentially boils down to a contract dispute. IMHO, the ILCA is rightly trying to get the class association out of the middle of the dispute between LPE and GS, by asking the members to approve a rule change that gives the ILCA more flexibility in appointing builders, and takes the class out of the role of being a pawn in the dispute between LPE and GS.
GS has no leverage to collect royalties from LPE or anyone else, without the ILCA requiring it, as they purchased rights of no real value without the enforcement of the ILCA requiring builders to abide by the "Kirby agreements". They should have realized that before writing a check to buy those rights, as it makes them FAR less valuable. The ILCA says that it is not a party to any contracts regarding these hull copyrights, so why should it be in the middle?
The real prize is the "Laser" trademark, not the expired design copyright. A one-design "beam of light" sailboat is whatever the ILCA rules and build book say it is, if it's built by an ILCA approved builder. But you can't sell it as a "Laser" and slap that logo on it, without rights to use the trademarks! It would be nice if the ILCA owned the trademark, then your would really control your destiny.
Good on 'ya Bruce, for selling expired rights, and contracts based on something that could be nullified by a simple vote. Enjoy your retirement, you certainly deserve it. Caveat emptor, GS! You should have realized that the contracts Bruce was selling had their foundations in the sand of an ILCA rule that could be changed. I'm sure it was all done in good faith, but my impression is that there may have been lack of proper due diligence on GS' part.
LPE might be a bit out of bounds to stop paying GS, IF their builder's contract subjects them explicitly to the "Kirby agreements" (which sounds not to be the case) or explicitly binds them to the the ILCA Rules, which includes this fundamental rule. I'd suspect builders are contractually bound to abide by the class rules, but have no direct knowledge if that is the case.
OTOH, if builders are contractually bound to the ILCA rules, and the fundamental rule includes abiding by the Kirby agreements, changing that rule is a bit of an end run by the class to benefit LPE.
In the end, I'm not entirely sure what to think (or how I would vote, if I were a voting member), but I would assume that the class officers do have the best interests of the members at heart. They may prefer to withhold details to not embarrass a involved party, or cause them to dig their heels in any deeper.
Quite a conundrum. I hope it can get settled without tearing apart a great class.
I don't think that either Heini Wellmann or Jeff Martin are the villains here. The dispute arose between Global Sailing and LaserPerformance and I can assure you that over the course of the past year Heini Wellmann, a volunteer, has worked tirelessly to try to broker a peace between the two. Both Heini and Jeff are acting based on the best information available to them, from the agreements they are privileged to see, to the best legal advice they could obtain. They have agonized over this decision for at least six months that I know of and did not want to get to this point.
The bottom line is that Global Sailing and LaserPerformance have not worked to resolve their dispute. If there are parties to be villainized here it is LP and GS for not resolving a dispute between themselves, not the people who have been working for the the class association to find a resolution to this dispute.
I can agree that the article on Sail-World can make one think the class is making a big mistake with this rule change proposal. On the other hand, the article is not at all enlightening any of us as to what our Laser sailing world will look like if LP and GS do not resolve their dispute AND the rule change fails. I think one has to carefully keep in mind what that means to all of us, from the sailing we love to do all the way to the value of our investments in our boats.
Again, it is basically an IP issue that needs to be worked out among the builders. If the IP is dead, then the class does need to update the fundamental rule. However, the builders' lawyers need to sort it out first. Acting now only puts the class square in the middle of the mess.
I think the class officials saw the precious Olympic status slipping away and felt it necessary to act now.
it was determined, through the best legal advice that ILCA could get, that if the goal was to preserve Laser sailing as we know it then the trademarks trumped all. If we, as sailors, want to continue to sail the same boats we have now, including calling them Lasers with a starburst logo, then the proposed modification of the Fundamental Rule was deemed the best course of action.
What does seem to be the case is that the ILCA have not provided a balanced case, have not provided adequate information and seem to have taken the attitude that "they have decided" and want the membership to rubber stamp their decision (on the basis that "they know best"). And that does not reflect well on how things are run. That they continue to fail to act to correct this makes things worse.
Thanks for what reads to me to be a very nice synopsis of the situation as I understand it, including good explanations of some of the details that it sounds like people are questioning.
The only thing I can add, or, really, reiterate, is that ILCA is not a part of the agreement between GS and LP and, additionally, is not priviliged to the details of that document. So, ILCA has no knowledge of what GS may or may not require of LP.
Obviously the proposed rule change benefits LP over Global Sailing and certainly gives the appearance that ILCA has "chosen a side." In effect, it has, but I can assure you that it is not out of love for LaserPerformance. As stated above, when push came to shove it was determined, through the best legal advice that ILCA could get, that if the goal was to preserve Laser sailing as we know it then the trademarks trumped all. If we, as sailors, want to continue to sail the same boats we have now, including calling them Lasers with a starburst logo, then the proposed modification of the Fundamental Rule was deemed the best course of action.
At the end of the day, the truly best path forward would be for Global Sailing and LaserPerformance to resolve their dispute and obviate the need for a rule change. I would hope they are working to do that.
note to builders - if you insist on destroying the class, you won't have any market left.
Tracy, thank you for your comment, I appreciate it. Especially after being threatened with a libel lawsuit this morning by Wesley W. Whitmyer, Jr. of St. Onge Steward Johnson & Reens, LLC, attorney for Bruce Kirby, Inc. and Bruce Kirby for 2 personal opinions expressed in that post.
Anyone know how I edit a 4 day old post? I can't be bothered to put up with the hassle, though I despise the tactic. The board won't give me edit access to my post, though I am logged in.
I will also add that I am not a part of the agreement between GS and LP and, additionally, am not privileged to the details of that document. So, I have no knowledge of what GS may or may not require of LP.
We are being asked to change the ILCA builder's requirement from:
Builders must have an agreement with the owner of the design
to
Builders must build boats called Lasers with starburst insignias
The real issue is not whether somebody owns a trademark. the issue is One design toys:
"The buiilder must agree to build according to our specifications!!"
If Kirby's design rights have expired, it is time to w rite a new set of official 14 foot long sailboat specifications for our game and get opur own set of design rights.
Leaving the construction and design control open to anyone who happens to own a copyright for a starburst and a name does not serve our game.
I can not understand this GREAT PROBLEM........
Cheers