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TITLE V: PROTECTION OF CERTAIN ORIGINAL DESIGNS

Title V of the DMCA, referred to as "Vessel Hull Design Protection Act," provides new sui generis protection for original boat hull designs for a 10-year term by adding a new chapter, Chapter 13, to Title 17 of the United States Code.

In Bonito Boats Inc. v. Thunder Craft Boats, Inc.,54 the Supreme Court struck down, as preempted by federal patent law, a Florida statute that had protected the design of boat hulls against copying by means of making a mold from the finished hull. Title V was proposed to address the concerns raised by boat manufacturers and design firms in the wake of that decision.

An application for registration of the design would be a prerequisite to protection, and such application would have to be made within two years of the date the design was first made public.55 The owner of a registered design would have the exclusive right to make, sell, import or distribute for sale or for commercial use any hull embodying the design.56 The DMCA would, however, exempt from liability for infringement certain actions, including reproducing a protected design "solely for the purpose of teaching, analyzing, or evaluating the appearance, concepts, or techniques embodied in the design, or the function of the useful article embodying the design."57 In addition, a distributor who sold a vessel hull embodying a protected design would not be liable if the distributor did not know the design was protected and copied.58 Also, as with copyright, no liability would attach if the allegedly infringing hull was designed independently - i.e., without copying the first hull. Further, whenever any vessel hull embodying a protected design was publicly exhibited or distributed, the hull would have to carry a notice of the design’s protection, and omission of the notice would prevent the owner from recovering against a party who infringes before receiving notice of the protection.59

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