Question for Yacht Designers/Naval Architects

[A. Mason]

Over fifty years ago, aspiring yacht designers/naval architects who chose to work for the leading design firms and shipyards were on the whole permitted to do freelance work, with the major exception of John G. Alden.

Alden had a very restrictive policy and it is not surprising that the likes of Sam Crocker, Carl Alberg, Aage Neilsen, Al Mason, and others passed through Alden's doors. In the case of my faather, he worked for Alden for all of 18 months.

Alden laid him off due to lack of work and while on unemployment my father designed a small sailboat, on his own time, at home, with his own equipment. When Alden found out about the design, he informed my father that the design belonged to Alden, and my father was told to turn over all the drawings. In lieu of that, my father quit and returned to New York.

I am aware that in the computer industry, many companies require creative types to sign agreements prohibiting them from doing any freelance work. If they create anything on their own time with their own equipment, the company claims the work belongs to the company, not the individual.

I'm curious if current yacht designers/naval architects face the same restrictive policies when they are employed full time by a firm. Is the current trend to be owned 24/7 by a company, or is it the exception?

In the "old" days, most designers worked for one or another company, usually on large yachts as a group, and spent their free time independently developing small watercraft.

I got curious because I seem to see the same few names of individual designers appearing on the forum and got to wondering if the majority are prohibited from doing independent work, or if there is really a lot fewer designers today, which doesn't seem likely.

Thanks,
Anita

[WWheeler]

Anita:

I'm a management consultant/technical writer who typically works as a contractor/freelance. I'm been acquainted this issue, since I'm frequently asked to sign "intellectual property" agreements as part of the contract. The typical agreement contains clauses that all of the original ideas/intellectual property conceived while under contract are the property of the company. That's 7/24, and could include concepts/designs done at night.

The idea was originally to protect companies from workers who stumble across an idea, walk out the door, and make big in the process. The same could apply to a salesman who develops a big client list, walks out the door with it, and starts a whole new business. There's some idea of material loss to the company, which is valid.

However, IMHO it would seem that the whole thing has gone much too far, especially if it applies to a yacht designer who does some work on the side.

Where the whole thing has gone to hilarious lengths is the so-called "non-compete" clause, where the contract precludes you working in the same field for up to one year after leaving employment. I'm not sure about the laws where you live, but in Canada the courts tend to take a dim view of preventing someone from earning a living.

The legal test is probably something like: would this person have been able to complete the work without the day job? For example, a fully trained designer could argue that he already had all of the skills / abilities, and was not borrowing anything from the employer.

In short, ownerhsip of intellectual property can be put into an employment contract, but there's legal limitations (both statutory and common law) as to how far that can go.

A working lawyer could provide his/her two cents, based on your jurisdiction.

[Ian McColgin]

I've some friends who are NA's or yacht designers.

There's a whelter of deals out there but if you look closely you'll see that the designer name operations are, like Alden, firms with various teams of serfs or colleagues, depending on the firm, hard at work. Also, a lot of designers labor in annononimity like medeival builders . . .

[A. Mason]

As a technical illustrator/graphic designer, I have often been asked by firms and contract agencies to sign employment contracts. Inevitably it becomes a long drawn-out protracted negotiation. I flatly refuse to sign any document that has the potential of curbing my ability to earn a living any way I see fit.

My most common approach is to simply draw a red line through any text I find objectionable and initial the cross-outs. Then the heavy negotiations begin.

Many people don't bother to carefully read the fine print, or believe the employer's verbal statements that the company would never take action on those objectionable sections.

My father was the one who taught me to carefully read the fine print and voice objections to anything that could possibly restrict my creative freedom. He worked for many different employers over his lifetime and only Alden was that restrictive.

Anita

[Donn]

When I left one publisher as a VP of Sales, and took the same position with another publisher, the new boss wanted me to sign a contract that would have precluded me from taking my customer list if I left, and prevented me from working in sales in the industry for 3 years. Keep in mind that the customer list that I brought him was far more extensive than his own. I refused, and he re-wrote the contract, without the non-compete clause.

[Dave Fleming]

Anita, MMD is a practicing NA in Nova Scotia and frequents these Forums, he should be bye soon and is sure to give his views on this subject from a first hand perspective.

[Ed Harrow]

Anita, the real hoot here, from my perspective, was that you Dad did this while laid off! If he wasn't drawing any kind of salary from Alden I can't imagine how he could make such a claim.

[Ken Hall]

Claim probably based on the fact that Alden paid into the unemployment insurance fund, or similar nonsense....

[htom]

Not just the computer industry, or yacht design industry (are there enough yacht designers to be an industry?) either. I was working (years ago) as a temp (paid by A to work at B) doing a task (call it cleaning and painting the walls), and B tried to claim ownership of a computer program I created at home. B didn't even HAVE a computer in that office, let alone one that would have been able to use, or been useful in creating, that code. The really funny part is that a previous employer, who'd dismissed me as "incompetent", ALSO tried to claim it! Thank god for good lawyers.

The days when you could have some kind of "we'll ignore that clause in your case" on a handshake are long gone. It's too bad, in many ways, but that's the case.

Anita, you're doing the right thing. It's cost me a few jobs, over the years, but that I can think at night for myself is worth it.

[mmd]

Hi, folks. Yes, I have been asked to sign restrictive contracts containing "non-disclosure" agreements. I think of myself as an honourable and trustworthy professional, and I resent the implication inherent in them, and rarely agree. If you are working on ground-breaking technology such as would have been the case of the design team for the Australian wing-keel America's Cup boat, I can go along with the fear of an employee swiping the new ideas and profiting at your research expense, but, c'mon! How many of the world's designers get to work at that level? I worked for a couple of years on the design team for the Canadian Patrol Frigates, and I can understand such clauses in one's contract when you are dealing with hush-hush military stuff. However, most of what we designers do is new variations on existing technology, so it's out there for anybody to use. I can agree to non-disclosure agreements for specific processes, inventions, or design concepts that you may work on for the employer, but the concept of "owning" a person's non-job-related ideas just because they are in your employ is ludicrous.

My favourite personal example is when I was offered a contract to design buoy enclosures for a hi-tech electronics company that was designing an aircraft-deployable drift tracking buoy to be launched during search-and-rescue operations to determine the direction and speed that survivors would be drifting from the scene of a marine emergency. They were good at radios and satelites and electronics, but needed someone who knew how to predict displacements, CofG, stability, etc. All went well until they told me that ANYTHING I designed during our contract time was theirs. I told them I was drawing a fifteen-foot ply speedboat which was a far cry from a buoy, so that was OK, right? Nope. But they were generous enough to tell me that I would be able to purchase the rights to use my own design under license, with appropriate royalty fee to be paid per use, after I had completed the work on it - on my own time, of course!

I have never felt remorse at not becoming a buoy-designer.

[Paul Jeffrey]

For another story here in the late 80's I went to work for a marine electronics company that was developing a sat nav system. I was to work with the yachting community for the firm. At the time I was also studing yacht design. I was asked to sign a non-disclosure/non compete agreement. After agreeing with the firm that this would only pretain to their products I agreed and signed the paper.

I worked with the company for a year and then left. The company closed it's doors a year later. About two years after I left I came up with some innovations to their basic concept for the nav system. Seeing as how the company had ceased to exsist I felt I could pursue the possiblity of developing a system. When I did some checking on the agreement I had signed I found that the original owner of the company still held all rights to the design and technology of that base system and that the agreement was still valid. So I was legaly barred from doing any development work on the innovations until the end of the term of the agreement. This is even though the company was no longer and the owner was bankrupt. By the time the term ended several other companies had developed the same ideas and had put the products on the market. So if asked to sign these type of agreements read carefully what they involve and pay close attention to the term of the agreement.

I did design a couple of small sailboats during the time I worked for that company and I am glad they where omitted from the agreement. I would have really disliked turning over the rights to them to someone else. I did lose an opportunity to maybe develop the system, but all in all I am happier making sails and doing some boat design and building from time to time. I am not that much of an office person, as anyone who has seen my small office or what I call an office anyways, can validate. It is a complete mess, and why do I have a vice on my drafting table? Well I just haven't gotten around to putting it back in the shop, I'll get to it one of these days. ;)

Paul J

[bainbridgeisland]

I was a Yacht Designer for a well known, but small, firm in the 80s. I was asked not to design boats and yachts on my own time while working for the company. Though, I eventually left for this reason, I do not think the policy was unreasonable. Here is why.

First of all, as a professional Yacht Designer, sales are part of your duties. The personal contacts made outside of work reflect on the company. Boat and yacht design commissions come more from personal contacts than from any other source. You need a group of people with complimentary skills, working together not only on the technical aspects but also on the customer relationships and sales part of the business. In our industry these are inseparable. The group working together becomes more powerful than an individual designer. This is what makes a yacht design company successful.

I now earn my living as a Naval Architect, i.e. designing ships, not boats. Since no conflict of interest exists between these two parts of the business, I can now design boats on my own time. Because of time committed to my "day job" my yacht design business can only produce a few designs a year. But with kids in college this is as it must be.

[A. Mason]

Decades ago it used to cut both ways. My father used to refer personal clients to his employer if they wanted a large yacht [over 50 feet]. In his prime, slide rules were still used for calculations and drawings were hand-inked. Working alone, a large yacht could take up to a year to design, and my father just didn't want to commit that much time to a single design. He got bored with the design after about six months.

Likewise, his day job employer would occasionally refer a potential company client to my father, or to one of the other inhouse designers. The reason was usually that the client baulked at the company's fees, and if the design was small enough and held an interesting design challenge, my father would agree. He would also refer clients to other designers if the design was not something he really wanted to be involved in, or if he already had a client and thus just didn't have the time.

I had similar experiences decades ago. When I was working for an ad agency, the agency asked if I would freelance for a client who couldn't afford the agency's rates. [They had a 400% markup on my hourly rate.] It turned out the client was one of a chain of 17 hotels owned by one franchise. The freelance project was so successful the franchise owner asked the agency to create customized versions of the promotional piece for the other 16 hotels.

It seems as though that kind of sharing is a thing of the past. Companies and individuals used to work together for the benefit of the client, and each knew "the line" between them. The mutual goal was to assist the client achieve their dream.

Anita

[mmd]

Quoting Anita:

"Companies and individuals used to work together for the benefit of the client, and each knew "the line" between them. The mutual goal was to assist the client achieve their dream." Very well said; after all, isn't making clients' dreams come true what we as designers are all about? It is so frustrating and counter-productive when vanity and greed get in the way of cooperation and shared profit. After all, when one has posession of all the marbles there is nobody left to play with, and the game gets a bit dull.

[DesignByBird]

Anita,

Irrespective of any signed agreements between employer and employed (whatever their job may be) international copyright law is clear on ‘any derivative thereof ’ ~ that is, if the employer can persuade the courts ~ that a design (in full or part) was directly inspired by or evolved from an existing design ~ then that employer (originator) has legal rights to that derivative.. and royalties derived thereof.. Alden would be within his rights to protect his interests in this way, as would any employer today.., whether it is a designer, a person from production, or even the receptionist who sees and takes an idea, unique feature, &/or style and develops it for their own profit or gain..

Regarding ‘the number’ of Designers.., for myself at least, I have been blocked repeatedly by the clients wanting / needing the ‘marketing clout’ of a big name behind their range or latest creation (significant investment and risk).

As many of us actually do / did the work (behind the scenes), many of us back room boys (and girls) are more than capable of doing the work (and even more) independently, but to get the break takes aggressive promotion of ones own name and abilities.., which is of course subject to former employer(s) allowing you to reproduce details and images of ‘their’ work.. (court injunctions of ; images, names and trademarks ar far easier and cost effective to obtain). And as it is a very small / close knit industry, any aggravation stirred up can be a death roll for the under-financed and struggling talent.

Another side of the equation is that many designer studios are willing to speculate their design proposals for a chance to get the full contract. Naturally this is played-out by those in the know, and again I worked on a detailed proposal for a famous Australian golfer.. The (mega-yacht engineering and manufacturing) company I worked for (over there in the US), as well as a large number of others, applied their long experience and specific expertise to present (what represented a huge number of man hours, complete with technical specifications) well thought out designs to the client’s criteria.., just to find that a yacht which was very similar ~ in so many respects ~ was to be built in .., you guessed it .., in Australia.!

Of course with us all receiving the same, or at least a very similar brief, then it would be almost impossible to identify ‘unique’ features, &/or direct derivation from ourselves, and the adverse international publicity for such a yard wouldn’t be worth it.

So for a person to go independent ; they have to firstly be seen not to draw upon their own recent employment experience for fear of copyright litigation &/or inter-industry slandering / being stamped upon, and at the same time.., to design for free until they finally get lucky.

Since going independent, I have completed a significant number of design proposals from 7.5 to 43m (motor and sail) and had accepted ~ by delighted clients ~ who have for one reason or another (usually financial or change of direction) sat on them. This has meant that I have then not even had the chance to recoup those (months of work) looses (through having the contract to detail and finish the design). :mad: I now reject doing any and all 'speculative' proposals ~ whomever the client (except past proven ones) and would strongly urge all individuals, studios and yards to do the same..

Those who have made it through tend to have built boats for themselves, or for friends (by not selling they are not in breach of copyright) to (successfully) campaign, and in doing so make the small but imperative step to becoming reknown.. Naturally this is easier (results seen within a season or two) through the racing circuits (assuming of course they have first class competitors sailing their creation) than in the field of cruiser design (where successful offshore rally success is both costly and relatively low on exposure).

Regarding “intellectual property" agreements, these are usually not worth the paper they are printed on, but are more a threat to impending hassle if one does not conform. More often than not, there are loopholes which would not hold up in court, and at best (like any copyright or patent) are only worth what the business can afford to throw at, and risk to loose, in court and attorney fees. Realistically few studios can afford to push the matter very deep into court and rely on the threat more than the fact.

And like WWheeler says ; here in Europe also ‘the courts tend to take a dim view of preventing someone from earning a living’, on top of which.., there are so many legal ‘appeal procedures’ in place that it would bankrupt most studios should they choose to aggressively pursue that route against an individual eligible for legal aid. To pursue the matter from one country to another (even within the EEC) is even more impossible. Most probably a similar situation would apply across state boundaries ?? In most cases of course however, the employer / studio would not need to because they already had an inside line / clout and history with the client, with suppliers &/or with the builders.

Finally it is worth considering the end user liability over the designer. If one’s client were to loose life or limb, because of suspect design or fault, would the former employer still want to be associated with the employee who has borrowed details from an earlier design ? and likewise vice-versa..!

Hope that helps.., ;)

regards, Peter Bird.

[htom]

This question has popped up on Slashdot today, with a lawsuit in Texas inspiring it. The company has been granted ownership of an idea that was not written down.

And the IEEE is going to have another run at having Congress implement what some call "shop rights" (like NASA and some DoD contracts) where the idea remains with the inventor (human person) and the shop has a free license. Your input is requested, you don't need to be a member.

Slashdot story (and discussion, I recommend level 2 or higher): http://slashdot.org/articles/02/08/14/2036245.shtml?tid=123

Law.com story: http://www.law.com/servlet/ContentServer?pagename=OpenMarket/Xcelerate/View&c=LawArticle&cid=1028906396630&live=true&cst=1&pc=0&pa=0

IEEE Spectrum story: http://www.spectrum.ieee.org/INST/aug02/fintel.html

IEEE form: http://ieeeusa.org/committees/IPC/

[DesignByBird]

To help clarify copyright and patent laws.., without prejudice.., as this is as I understand the case to be.. rather than legal advice.. :rolleyes:

One of the important things to remember with either Patents or Copyright is.., that they do expire..! :cool:

Patents in the first place may never be granted.., "patent applied for" means exactly that ~ applied for ~ but not necessarily granted, and not necessarily taken up by the applicant because of the costs involved.. :eek:

Patents secondly have to be filed before public disclosure. If this filing is not done before disclosure then the patent is likely to be voided (and that can include talking about it to anyone, even in publicly held private conversation..!).

If a patent is applied for but turned down and a revised patent applied for.., then only those items cover in the original application are protected from that earlier date.., public disclosure inbetween the original application and re-application may void the latter.

Patents thirdly are (or at least were ~ I have been out of that game for almost ten years) subject to renewal on receipt of (annual) fee. No fee and the patent lapses..

Patents fourthly are (or were) normally granted for a period of only up to 25 years. Thereafter the patent expires.

Patents fifthly are so exact that they are relatively easily 'got around' without breaching any law.., and unlike copyrights, the patent does not cover derivatives thereof..

Copyright on the other hand is automatic and dates from whenever the artist, author or designer can back 'prove' his/her originality. It can be verified as easily as sending a registered letter copy to yourself which you never open until needed in court to prove the date of it's contents. smile.gif

Copyright does not need to be filed, nor applied for.., and there is no cost.. either at the time or as a fee thereafter.. The onus would (in case of dispute) be on the creator to prove his/her earliest date for that work. ;)

Copyright belongs to the creator until death or contractually signing that over. Only by signing that over (which may include company changing hands with all assets) can the copyright remain valid after death. But in the majority of cases copyrights claimed by relatives of the creator would not hold up in court.

The workings of copyright law in the commercial sphere (after it has been bought or otherwise acquired) is something i know nothing about.., save that here in the UK.., a number of small 'kit-car' / companies reproducing automobiles similar in style to old 'classics' were successfully litigated against by the likes of Lotus, Ferrari, and Lamborghini.., long after the personal creator of those particular models of automobile had passed away.

Perhaps the same might happen if a company reproduced similar vessels to those created by the old masters in this industry.., but only if the family or business could afford the considerable litigation costs..!

As I stated above, copyright also (and automatically) covers and derivative directly or indirectly derived thereof.

Hope that helps.., :cool:

Pete