The Black Pearl

[mrshanks]

Hi Mike, it was a total impulse buy

Oh well Clair. It happens to all of us from time to time. Notice on the ad it specifically says "decoration toy". This is always a clue that the product is not a true scale model of the type we hobbyists build. Unfortunately, these types of products often get confused with proper scale models and lumped into a bucket and labeled as "ripoffs", "fakes", and "copies". In reality, they are what they say they are... "decoration toys", "souvenirs", "art", etc. None of these products are made by ZHL.

One of the reasons we created our Black Pearl thread was to inform readers so they would not get caught in this trap. If you see what you think is a Black Pearl model but the price is extremely discounted you might want to take a closer look.

 

[mrshanks]

Well... if we are going to get into it, lets.

Thank you for all the great feedback, pictures, and questions Ophotn. Much appreciated. You actually got a little ahead of me in the story so I ask that you just be a bit more patient and I will answer your questions. With regards to Black Pearl, understanding licensing, copyright, and IP is relevant in this story because of the slander and accusations made by others and the impact on honest model builders that behavior has caused. I promise to present the information in a fashion that is not too boring (i.e. I dont want to sound like a lawyer.. LOL).

Bottom line - a lot of people, including you, Dave, myself, and others have made uninformed assumptions based upon predetermined bias' to form our opinions. While I am not trying to change anyone's opinion, I do want to set the record straight with regards to fact-based information. SoS has given me that opportunity.

So, while I won't directly answer your question now, I think you will get your answers in my upcoming blogs. I do stand by all of my previous blogs and everything I have said before, including the fact that the All Scenario version of the Black Pearl is an original design by ZHL.

 

[Dave Stevens (Lumberyard)]

Bottom line - a lot of people, including you, Dave, myself, and others have made uninformed assumptions based upon predetermined bias' to form our opinions. While I am not trying to change anyone's opinion, I do want to set the record straight with regards to fact-based information. SoS has given me that opportunity.

yes I apologize for that and I was going to clean it all up but people suggest and as Jim said in post #181 thousands of model ship builders around the world are reading and following this blog actually within just a couple days we jumped to 4,000 so it will be left as is. But from here on it is only the facts and nothing more.

the plan is for Mike to continue as he posted #183 and I will sit back and translate and restructure the build log of the first Black Pearl model built by Mellpapa and post it uninterrupted.

 

[Ophotn]

I do stand by all of my previous blogs and everything I have said before, including the fact that the All Scenario version of the Black Pearl is an original design by ZHL.

Im very interested. Two weeks ago you didnt know ZHL had multiple Black Pearl Designs, and now you are the arbiter what is fact or fiction. I, frankly, am having difficulty understanding what "new information" you could possibly bring to this very old story. But Ill be patient.

As to predetermined bias... yes. I accept that. Why? Because Ive been over all this so many times. There has never been compelling evidence to the contrary, and as I said in my earlier post is part of a pattern for ZHL. So, yes I guess I have bias now - because this is not a new discussion, and my conclusions havent changed.

Good luck, I do hope you can bring something new to the discussion and look forward to the discussion.

 

[Dave Stevens (Lumberyard)]

from my first post I wanted to present a little back round on this popular modeling subject. I never imagined it would go viral so quick. I want to thank all the businesses and people, all the emails and PM messages, all the extensive research, all the links and information provided by other forums and sites across the world. It is inspiring to see so many come together to present this story.
thank you all

 

[mrshanks]

Let's get to some of the good stuff. First of all let me say that everything I post is my information, that I alone researched. I am not an SoS staff member. All of the information I am providing is informational and only intended to be applied to the various models of the Black Pearl on the market. When I say Black Pearl, I am referring to the fictional pirate ship as portrayed in the Disney movies Pirates of the Caribbean. There will be multiple posts related to what I am about to bust wide open so hold on to your bootstraps and sail on:

What is a copyright? Copyright is a type of intellectual property that gives its owner the exclusive right to make copies of a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.

In the case of a wooden scale model of the Black Pearl, the creative work could fall into the category of literary (plans, drawings) or artistic (prebuilt models, kits). So the creator of original plans, drawings, prebuilt models, or kits of the Black Pearl would want to apply for a Copyright to protect their intellectual property and give them exclusive rights to make copies of their creative work. Remember, the copyright protects the expression of the idea but not the idea itself.

Since Disney created these great Pirates of the Caribbean movies, let's take a look at the Copyrights they have. From the period of 1953 - 2020, 526 Copyrights have been filed related to "Black Pearl". As you would expect, a very large number of these Copyrights are claimed by Disney. Copyrights are filed with the U.S Copyright Office by "Type" of creative work. Disney has Black Pearl Copyrights for: Books, Music, Motion Pictures, Toys, Recordings, Mixed Art, Press Kits, Literature Units, Paintings, and Visual Materials.

The closest Copyright Disney claims to a wooden scale model of the Black Pearl is as follows:

Type: Text
Copyright Number/Date: TX0006604908 / 2007-06-22
Claimant: Disney Enterprises, Inc
Title: Pirates of the Caribbean: the black pearl - a pop-up pirate ship

Here is the link to the US Copyright Office you can research yourself: https://cocatalog.loc.gov/cgi-bin/P...ERsUkpwfAhI-f_-JVOZ5&SEQ=20200624132419&SID=1

In conclusion: Disney does not claim any Copyright to wooden scale models of the Black Pearl. Nor does anyone else. There are also no Copyright claimants for drawings or plans of the Black Pearl. They do not exist. If someone can show me otherwise, I am happy to change this post.

More tomorrow.....

 

[Clair G]

Well I have to admit the Black Pearl discussion helped persuade me to join instead of just lurking, I personally am finding this tread very informative and entertaining. We all have different oppinions just like we all like different foods, brands of automobiles, and taste in the significant others area. Its good to see others thoughts and opinions to make sure you are thinking clearly and not blinded by my Chevrolet flag I was taught early by my late great dad " Boy, opinions are like bungholes, everyone has one and most are full of sh.. ".

Again I wish to thank everyone for allowing me to join here, I really enjoy the atmosphere and the way folks are just so danged cool on SOS.

 

[mrshanks]

A bit more.... just in case I wasn't clear....

Disney's Pirates of the Caribbean as an artistic work is indeed Copyrighted and the pirate ship Black Pearl as a character in the movie is protected under that Copyright. However, since there are no Copyrighted design plans of the Black Pearl ship, the Claimant (Disney) gets to determine if recreations (models) are judged by them to be exact duplicates of their work. Since the ship in the movies changed even from scene to scene - this is an argument that Disney would not care to make as it is not productive nor positive for the public. Instead, Disney sits back and enjoys the benefit of free advertising for all the recreations of their ship by modelers all over the world... none of them an exact duplicate of the movie.

No Copyright, No Claim, No license required.

 

[mrshanks]

Of all the Black Pearl models we have reviewed, only the Hachette had Disney licensing. The reason is simple. The Hachette Black Pearl used Disney Copyrighted material - written publication, motion picture imagery. It had nothing to do with the model itself.

 

[Jim J]

I found the info on "limitations" to be quite interesting - if somewhat convoluted - especially in regards to international law. Seems like "copyright" doesn't mean what it used to thanks to the expanding digital intormation availability. Good stuff Mike and Dave.

 

[Ophotn]

Disney's Pirates of the Caribbean as an artistic work is indeed Copyrighted and the pirate ship Black Pearl as a character in the movie is protected under that Copyright. However, since there are no Copyrighted design plans of the Black Pearl ship, the Claimant (Disney) gets to determine if recreations (models) are judged by them to be exact duplicates of their work.

Irrespective of your research on copyright - which is interesting. The depiction of the Black Pearl as a pirate ship is a Trademark issue, not a Copyright issue. The depiction of Pirates of the Caribean imagery on packaging, as you point out, would likely be the licensing and copyright issue.

If Disney decided to take up a suit against any model manufacturer over the use of the term "Black Pearl" and the depicted model even remotely resembled the ship from the movies, Disney could file for Trademark infringement. Basically this is covered by the very clear statement from Disney's anti-piracy clause: "Anything drawn or designed by Disney cannot be used." One could argue that the various depictions of "Black Pearl" are essentially derivative and thus covered under transformative use - but that sounds like the details typically reserved for traedmark lawyers and actual disputes. Is there a dispute here? Im not sure.

The copyright issue (as I see that it relates to plans or designs of Black Pearl) would come into play when comparing one model manufacturer's plans against another, regardless of ship or connection to Disney. So - returning to the prior narrative of this thread - Hachette or ZHL has violated the copyright of the other. I maintain that ZHL has violated the inherent (non-registered but 100% valid) copyright of Hachette/Watton/Amati and others. I also think anyone who has created a galleon-style black pirate ship and called it Black Pearl is in violation of Disney's Trademark. These are two separate and distinct issues, between two/three different entities, with no overlap.

 

[mrshanks]

ZHL has violated the inherent (non-registered but 100% valid) copyright of Hachette/Watton/Amati

Interesting Ophotn. I have indeed researched Trademarks, as well as Patents, as indicated in my Post #128. I just have not yet discussed those items. Regarding your comment above, I would ask you... Has Model Ship Master, and Old Modern Handicraft violated the copyright of Hachette/Watton/Amati? Non-registered or otherwise. Copyrights expire. Hachette's publication ended publication years ago. Watton has zero claim and I'm not sure why he is even mentioned. Amati never sold a Black Pearl, excuse me? Model designs are not Trademarked... you are mixing apples and oranges. Sorry.

Tomorrow, Trademarks and Patents.

 

[Ophotn]

Its a very interesting, complex set of laws. On one site I was reading, the concept of derivative work does provide a great deal of freedom for a third-party (Company B) to create and potentially profit on what was essentially the original idea of another (Company A). However, if I (Company C) were to copy that derivative work without substantially changing it and then compete with the original third-party (Company B), I would be the one in a precarious legal position not the other. One could argue that both third-party companies (B&C) are both guilty, but in fact it may only be me who is guilty. I think this sums up the heart of what people have been arguing for years in the model ship market - with varying degrees of misunderstanding. The story with those other popular ships could easily be confused as a case of companies copying each other when really, they arent at all. The laws dont apply to the concepts or character of the Ship, but to the designs of the models -

I have indeed researched Trademarks, as well as Patents, as indicated in my Post #128. I just have not yet discussed those items. Regarding your comment above, I would ask you... Has Model Ship Master, and Old Modern Handicraft violated the copyright of Hachette/Watton/Amati? Non-registered or otherwise. Copyrights expire. Hachette's publication ended publication years ago. Watton has zero claim and I'm not sure why he is even mentioned. Amati never sold a Black Pearl, excuse me? Model designs are not Trademarked... you are mixing apples and oranges. Sorry.

Again. No, Model Ship Master and Old Moder Handicraft have not violated Hachette/Watton/Amati copyrights. Those models are of their own design. They might be in violation of Disney's trademark though - but thats up to Disney. ZHL's "All Scenario" model, in my opinion, is however violating the copyright of Hachette/Amati/Watton with at least one of their kits. The proof is in the various parts.

You are correct that Watton likely has zero claim, he was paid for his role as an employee and he has said so many times - even here on SOS. Doesnt change the fact that the design of that one Black Pearl kit was his, and it was copied by ZHL. There is also the fact that ZHL has many different Black Pearl designs - I maintain that at least one of them is a copy. Put some similar time on other ZHL kits and you will see that this is repeated practice. Just like a software designer might design an app as an employee of Facebook, it is technically his design - but the app doesnt belong to him. In this case, the design ultimately belongs to Hachette/Amati - not Watton. Depending on his employment contract, the design may belong to them as he was their employee. I think his stake is that now he runs his own company, and if the same thing happens to his work under the Vanguard brand, he could be in serious trouble if ZHL or any other manufacturer copy's his designs and sells a kit at a lower rate.

Finally.... Yes, Amati and Hachette produced the now out of print Black Pearl in partnership, and as I understand it, Chris Watton worked for them during the time they designed that kit. Not mixing up anything here, Im actually trying to keep it all from getting to conflated. As I said, there are very different things going on that all run together.

 

[mrshanks]

I also think anyone who has created a galleon-style black pirate ship and called it Black Pearl is in violation of Disney's Trademark.

Is Model Ship Master and Old Modern Handicraft in violation of Disney's Trademark?

You are indeed getting on the right track though. It is complex. I am trying to lay it out simple. Words such as "stolen", "copied", "illegal" are strong words. They also result in people getting banned elsewhere and their ability to collaborate with modelers compromised.

You can see that ZHL's original Black Pearl kit came out in 2008, years before the Hachette. It is a completely different design. I have already indicated the the newer ZHL All Scenario kit is similar to the Hachette design. Similar does not mean same. There are people out there claiming 1 for 1 copy. This is not true. Industry standard for engineering designs is a 10% change in technical design means it is a new design. ZHL did not design the new kit on their own. They collaborated with other designers from Russia, China, Japan, and USA. I am sure the Hachette design had influence but that does not make it wrong, stolen, copied, or illegal.

Marconi and Tesla invented the radio nearly at the same time and completely independently. It happens.
Set side by side... A Ford F150 chassis and a GM 1500 chassis looks nearly identical.
The pictures you showed of the ZHL and Hachette while similar, are not the same. Sorry.

We live in an international free trade market as part of a Global economy. Artesania Latina is out of business because they failed to bring new products to the market. ZHL offers the only wooden scale model of the Black Pearl today... not just 1 but 3... they are all far superior to any others. It's called, competition.

Using strong words such as "stolen", "copied", "illegal" should require strong evidence. I have seen none. But, I think I have shown plenty of evidence to indicate nothing other than common competitive business practices.

If Hachette or Amati were making a model of the Black Pearl today I might have a different opinion. But no, sorry, they are not in the market.

And by the way..... the Hachette never was a "kit". It was a magazine subscription that included a model.

Ok.... whew... sorry for being long winded...

 

[Ophotn]

Non-registered or otherwise. Copyrights expire. Hachette's publication ended publication years ago.

Also true... however, according the US Copyright office: "The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. If it is a corporate author then the protection is for the shorter of 95 years from publication* or 120 years from creation*."

So.. the question of Amati/Hachette copyright - in the USA - is good well into the next century. I won't pretend to know how it would function between two non-US companies - but the ethics are the same, regardless of what the law might be. As it applies to Hachette, their corporate copyright gives them protection 25 years after the period it went out of publication, and if Watton has any copyright claim it would be 70 years after his death. So either way - their copyright still stands.

 

[mrshanks]

. the question of Amati/Hachette copyright - in the USA - is good well into the next century

Hachette Publications does not sell in North America. Their Black Pearl was never sold in USA nor Canada. Also, they do not have a Copyright on file with the US Copyright Office. Those are the facts. Sorry.

 

[Ophotn]

engineering designs is a 10% change in technical design means it is a new design.

The 10% rule is a myth. This is widely documented.

 

[Ophotn]

Hachette Publications does not sell in North America. Their Black Pearl was never sold in USA nor Canada. Also, they do not have a Copyright on file with the US Copyright Office. Those are the facts. Sorry.

I said as much, and qualified that by providing the UK copyright standards. Hachette copyright, in the UK and elsewhere in Europe is still good. I was providing US law as way to find common ground between us, being both Americans.

 

[mrshanks]

The 10% rule is a myth. This is widely documented.

Show us please.

 

[Ophotn]

Within the same firm, the 10% might be a standard by which new patent or copyrights are registered but you cant change 10% of another firms design and then call the design your own.

Since we are Global, here are but a few resources discussing this.

Australia:

Dispelling the

There is a common misconception that changing a work by 10% or 20% will mean that you can avoid liability for copyright infringement. Two recent decisions of the Federal Court have confirmed that this is not the case, and that the emphasis will always be on the quality of the part of the work...

www.mondaq.com

UK:

Top 10 copyright myths

Tackling common myths and misconceptions about copyright

copyrightservice.co.uk

USA:
https://www.sessions.edu/notes-on-design/ten-copyright-myths-that-can-hurt-you/ (#6). In particular, as it relates to the substantial similarities between the Hachette and ZHL designs.