HyperStealthCopyright and Camouflage Patterns: Questions and Answers

Question - How are camouflage patterns protected?

Answer - Camouflage patterns are considered Intellectual Property (IP) and are protected under international copyright laws under the Berne Convention.

World map showing the parties of Berne Convention signatories (in blue).

Even if a non-signatory country (Gray) infringes on copyright, the rights of the original copyright holder are still protected if that intellectual property is moved into a Berne Convention signatory country. For example if one of the countries in Gray who have not signed the Berne Convention prints material in our camouflage pattern and sends it to a Blue country for assembly or end user sales then we can go after the customers (assembly factories, companies or individuals selling the product and even the buyer) within any of the Blue countries for Copyright violation. The same is true if a Berne compliant country (Blue) prints and/or assembles for a non-Berne (Gray) country.

Question - How long is a copyright good for?

Answer - Copyright on average expires 50 years (in some cases 70) after the death of the originator (different countries have different expirations). The Copyright Term Extension Act a few years ago granted by the U.S. Supreme Court was brought about because Disney was about to lose the copyright on Mickey Mouse in 2003. This Act extended the term of protection by 20 years for works copyrighted after January 1, 1923. Works copyrighted by individuals since 1978 got "life of the originator plus 70 years" rather than the existing "life plus 50 years". Works made by or for corporations (referred to as "works made for hire") got 95 years. Works copyrighted before 1978 were shielded for 95 years, regardless of how they were produced.

Question – How do you prove copyright dates?

Answer – Any original work is considered under copyright from the time of inception, to prove this date you must be able to show the courts a way of legitimately confirming that date and then they compare your date to the date of the pattern being used by the infringing party. This is typically done by registering the original pattern with the government office in charge of Copyrights, Trademarks and Patents.

Question – If I didn’t see your copyright pattern then I can’t be charged with infringement if I develop something similar?

Answer – This is not correct; you can be charged with copyright infringement as the pattern is protected from the date of creation which can be proven to the courts, not the date you first saw the pattern publicly.

Question – I can change 10% of your pattern to come up with my own pattern.

Answer – No this is an urban myth, there is no percentage which the courts consider as being valid for a new copyright. The courts will look at the original pattern(s) and compare them with the violators to determine if the similarities constitute infringement, if the patterns look similar without any vast improvements then the courts will rule in favor of the original copyright holder.

Question - What are the penalties from the courts for copyright infringement?

Answer – Usually, once infringement has been established, penalties are handed down to the violator: Royalties owed are determined by the extent of the violation (how much was sold, made and or distributed). Further Penalties are then handed down by the courts as determined by potential past, present and future lost business of the original copyright holder and further damages can be sought by the original copyright holder as stated in the initial case to the courts – there have been a number of high profile cases where these damages alone (aside from the royalties and penalties) can be in the millions. On top of this, if the original copyright is registered the violator must pay all the legal costs incurred by the defendant. In some countries such as China (in recent clampdowns), the government will permanently shut down the offending business or factory which was in violation of copyright.

Question - I’ve seen your camouflage on characters in Video Games, where people have skinned (placed your patterns on) characters without your permission – is that a copyright violation if someone is using or offering these characters or images are provided to other users at no charge.

Answer - Yes that is considered copyright infringement even though no money has been made from using the pattern. If we pursued the matter, the courts can penalize the group or individual who are offering these characters and can even go after the end user. Once again damages and penalties owed to the defendant can be large even though there was no money was made by the offending person or groups.

Question - Why would you go after someone for skinning a character with your patterns?

It is important to our video game design clients who have signed legitimate licenses with us to provide our patterns within video games that they are not competing with other games that may have our pirated patterns. It is a large industry which has much competition; each game company is attempting to provide new or unique features to sell their game.

Question - If I violate copyright, you need to prove to the courts that I am guilty (innocent until proven guilty) and prove “beyond a reasonable doubt” that I have infringed?

Answer – No these are principles of criminal law, copyright violation is mostly civil law and involves which side can prove to the judge and/or jury of original work and whether the infringement is similar to the original.

Question - So Copyright violation is not considered a crime?

In the USA if you violate commercial copyright of more than 10 copies and/or a value of over $2,500, this can now be considered a felony (Criminal law), one person who was charged with a felony under this was acquitted because he didn’t charge his customers however congress has now amended the law to close this technicality (loophole).

Question – You mention on your site that you have over 7,000 patterns under copyright. How did you do that, how can I see them?

Answer – We dedicate at least 10-15 hours per week to pattern development and have done so since the summer of 2003. We make available for viewing a number of these patterns on our web site: www.hyperstealth.com most however are not released for public viewing, what we show on the site are only our older patterns which do not compromise our current government work as many are confidential and require that there is no public viewing, some of our work has even been classified.

From 2004-2005 we initiated the Analog to Digital Camouflage Conversion Project in which we took 150 world camouflage patterns and began to convert them to digital camouflage, some of these were purposely done very crudely (to hold the copyright to stop countries from making mistakes with this new digital process) and other conversions were done to improve the patterns. http://www.hyperstealth.com/adc2.htm

Question – Have you pursued copyright violations on your patterns?

Answer - We’ve had success with four cases of copyright infringement against our patterns over the past four years and we are considering a couple of other new cases at this time. The four cases were quickly settled out of court with the infringing companies. We are currently dealing with a trademark violation with another company but that is a different matter. We won our first registered trademark case and we have not yet lost a case.

With infringement, we can choose when and who we go after for violation, it does not have to be an immediate response from us once we identify a potential violator. If someone violates our copyright, the potential penalties and damages we would receive are typically larger than an actual licensed contract would be so we don’t stay awake at night and worry about this. In other words we have a few aces in our hand we can use at any time if required.

A short while ago the U.S. Government indicated to us they were going to go after all camouflage pattern infringement; we stopped SpecAm and Spec4ce production until we learned from their legal team that it was only the MARPAT digital pattern styles: MARPAT, NAVPAT, Universal Camouflage, AKA ACUPAT) and replica patterns they were targeting.

Question – Can’t someone just change colors on your patterns to get their own copyright?

Answer – No – The specific colors used are not considered an item which will change the specific Intellectual Property on a camouflage pattern, it is the pattern itself and the different layers (shades) which make up the pattern.

Question – Science is always able be able to improve technology, won’t someone just find a better way and make your patterns obsolete?

Yes you’re correct that technology has a way of getting better – but that deals with a wide range of science, camouflage is quite limited in scope and process which limits the design element to a number of variables that can only be changed so many times until you find yourself back where you started - it is a looped finite system. I can't tell you how many times I've changed one of our patterns with an algorithm only to find it looks just like another pattern we had previously done which had been accomplished with a totally different set of design elements.

When we were working on the British DPM digital system for the British Infantry Trials and Development Unit (ITDU) a few of our conversion algorithms caused some of these new DPM designs to take on the same appearance of the CADPAT and MARPAT designs – we couldn’t use those as they would have infringed on those copyrights. Sadly we were informed by the ITDU that the British Government had informed them that they could not work with us as we were not British but Canadian (last time I looked we were still part of the Commonwealth). The good thing is that we were told by the ITDU about the British Government decision before we showed them any of our designs that they had requested and thus we now hold a very large number of copyrights on many variations of Digital DPM.

Question - What about Patents, I’ve heard that you need to Patent your camouflage patterns for protection?

Answer - HyperStealth (or the designers) do not apply for patents on our camouflage patterns. Canada does not allow patents for camouflage as they consider it a copyright issue and patents just provide a full blueprint for the pattern and/or methodology for others to learn from.

Patents are only good in the country you file in and are limited to about 20 years, the U.S, does allow patents on camouflage patterns but this does not circumnavigate the IP with copyrights which are already in place (if a patent came out on a new pattern to company (A) and company (B) has held the copyright for a similar pattern prior to the patent pending being issued - company (B) can go after company (A) for copyright infringement and the issued patent will be cancelled – patents on camouflage in the U.S. are more or less an extra measure of protection for those that feel they need it on top of their copyright but as stated prior in Canada and most other countries patenting a work which is already covered under copyright is redundant.

Question – What about the U.S. Government, don’t they own the copyright and patent to the MARPAT pattern which came out in 2001? Can’t they come after you for copyright violation?

The U.S. DOD (Department of Defense) legal team has looked at those patterns our company has produced and found that they were not in violation of the U.S. patterns.

The camouflage design team of Guy Cramer and Lt. Col. Timothy R. O’Neill, Ph.D. (U.S. Army Ret.), share copyright on most of the close to 8,000 patterns have worked together on CCD programs for many countries. Cramer/O'Neill collaborate on most projects, excluding those presenting a conflict of interest.

Dr. O’Neill’s work is sited on the U.S. Patent for the Canadian CADPAT (Developed in the 1990’s) and the U.S. Patent for MARPAT (2001) as the original work by which these patterns are derived from. His research is referenced on patterns he designed from the early 1970’s. Dr. O’Neill’s name is on the MARPAT patent as one of the inventors.

Guy Cramer was the research assistant for his Grandfather Donald L. Hings, P. Eng, GeoPh. In the 1980’s and 90’s Hing’s is considered the Pioneer of the Walkie-Talkie which he received the Member Of British Empire for his work during WWII and the Order of Canada. With over 50 patents to his name Hings was able to teach Cramer about the values and pitfalls of Intellectual Property.

Hings had one patent changed by other people four times, he revised and improved each time and in the end won the case and was granted the patent. With Patents, improvements can in-fact be considered patentable even though it's based on previous original work. In the case of camouflage the initial copyright has precedent over any Patents.

Anyone can apply for a patent, even if you are granted a patent this does not mean you have any rights over any prior copyright or continued use of those initial copyright works in the field, even if you never saw the original copyright.

Finally effective Camouflage is “rocket science”, what used to be considered a field for artists only has now become a science unto itself. To design camouflage without these key areas of scientific understanding is the same thing as asking a carpenter to rebuild your car engine, he might get lucky but odds are it won’t run as well as it did before he started.

“By virtue of the Berne Convention for the Protection of Literary and Artistic Works, works are protected without any formality in all the countries party to that Convention. This means that international copyright protection is automatic, it exists as soon as a work is created, and this principle applies in all the countries party to the Berne Convention.” http://www.wipo.int/copyright/en/

For more Camouflage news go to the HyperStealth® Home Page

References:

World Intellectual Property Organization http://www.wipo.int/copyright/en/