- Are the two designs "substantially similar"? The copyright office says this is a subjective question only decided by a trial when an infringement is claimed.
It is my personal conclusion that this is the case. The similarities are substantial in just the base keel and frame parts by themselves. Obviously the trial here will be by a middling group of modelling peers and the consequences, whatever might be decided, are likely negligible for all parties involved.
- If we assume the ZHL and Hachette designs are indeed substantially similar, do we know that ZHL did not obtain permission from Hachette to use it?
I dont think we can know that, unless we ask them. Maybe we should. We (at least I and SOS admin) do know that Chris Watton has complained, and if anyone is to know what arrangements might have been made between Hachette/Amati and ZHL it would be him - as Ive said though, I think he has decided it is a futile endeavor. Im guessing his connections to those companies are still alive and healthy and he has likely communicated with them on this. Ive never read where he has indicated such an agreement as you describe has taken place. To that end, Ive never seen an official complaint by Caldercraft or Sergal either, who are also well-documented cases of ZHL IP infringement.
- If the designs are substantially similar and no permission has been granted, has Hachette filed an infringement complaint?
I dont think they have, or can. ZHL is in China, and the long arm of the UK copyright office probably isnt that long. Fighting these battles overseas has been a problem for companies all over the world. The fact is, the battle costs more in the end than small companies can bare. Which is why is important for us to have these discussions, I think we (the consumers) are the ones who can make the difference.
In any case, ZHL continues to be the only player in the market with a quality wooden scale model kit of the Black Pearl. Unless folks want to build one from scratch they really have no other choice. I know the Black Pearl is a popular subject because of the movies. It is a shame that some people want to prevent us from building the nicest kit we can find on the market.
This is where the technicalities of law cant be applied. This is where one's own morality comes into play. While it might be the only or nicest kit on the market, if it is immorally produced or sets a bad precedent for the market, should we continue to support it? I, personally, won't tell you what to buy but I will uphold the idea that buying stolen property is wrong. I admit that this language is strong, and I will own it. It's not an accusation, nor a judgment. I feel the evidence supports my conclusion and I feel obligated to reach out to my peers in the modeling community. And if we are going to talk about ZHL, I feel its important to always point out that their business practices have been proven to be amoral. Part of the reason this gets so muddled, I think, is because people assume this is a largely victimless crime. I actually think the precedent is more dangerous than the acts that have been committed thus far. If we are so eager to buy these goods, what does that mean for the new guys? What does that mean for Joe Schmuckatelly who is thinking of breaking into the business? Dont we want to support them as SOS has supported ZHL? And to be clear, I just mean supporting through exposure, SOS to my knowledge has no agreements or arrangements with ZHL.
One last thing, Ive been tempted many times to throw in all the other instances of IP "borrowing" by ZHL but have mostly avoided this to respect Dave's wish that we keep this about Black Pearl, but will just say that if you are curious feel free to PM me. We can have those discussions separately.
All the best.
