Car Features
Can you legally make a replica car
A recent European court case has highlighted the shaky ground on which replica car makers set up shop. Some original vehicle makers (OEMs) don’t seem to mind their designs being replicated, while others forbid the practice. We try to sort out the liabilities.
Retired Swedish car designer and Jaguar collector, Karl Magnusson finished building a replica of the famous Jaguar C-Type in 2018. Prior to that, he had bought his first Jaguar, an E-Type, in 1976. Since then, he has owned many more Jags and has been an active member of one of Scandinavia’s largest Jaguar clubs.
During the design and construction of his C-Type replica, he consulted with Jaguar Land Rover employees and made use of drawings that he said Jaguar had shared with previous replica builders.
However, it seems that Magnussen planned to build more than one vehicle and that’s where JLR lawyers became involved. In 2018, JLR sued Karl Magnusson for copyright infringement and in parallel with that, JLR took on Britain’s’ richest man, Jim Ratcliffe, who had developed the Ineos Grenadier. JLR said his new design infringed JLR’s copyright over the shape of the outgoing Land Rover Defender wagon.
The British courts threw out JLR’s claim that Ineos had ‘stolen’ the Defender styling, saying, virtually, that it had no styling at all and was just a generic two-box-body shape!
Karl Magnusson was not so fortunate. The Swedish court ruled favour of JLR, forcing Karl to appeal. A protracted legal battle ensued, costing him his car collection and considerable personal debt, before the ruling was overturned on appeal in 2022.
However the appeal ruling included a statement that JLR had copyright over the C-Type design. That’s was something of a milestone, because the C-Type itself was almost a carbon copy of the Bugatti Type 57 Le Mans car of 1936-37.
JLR also went after the largest maker of replica Jaguar kits in Britain, Suffolk Sportscars and that company went out of business.
Co-incidentally with all this legal action, Jaguar announced plans to build its own C-Type replica in 2021 – a run of 16 cars priced at Stg£1.5 million each.
Cynics, like us at Historic Vehicles, have suggested that JLR was motivated by its intentions to widen the range of ‘Continuation’ special vehicles it was building and wanted to make sure no-one else could compete with them. The Jaguar Continuation series now includes XKSS, D, lightweight E and C.
If the foregoing makes JLR look like a corporate villain, it’s not the only company to pursue replica makers.
In 2012, Mercedes-Benz had put a stop to production of a 300SL ‘gullwing’ replica and the body panels were crushed.
In 2019, Ferrari ensured that the legendary 250GTO bodywork design was registered as its own ‘work of art’ and Ferrari has since been successful in blocking some after-market body kit makers from enhancing existing Ferrari designs.
Porsche has copyright over the shape of the 911, but oddly, hasn’t taken action against USA’s Beck brand replicas of Porsche Speedsters and Spyders. Beck is careful not to mention ‘Porsche’ in its replica brochures, specs or branding, but the lineage is ‘patently’ obvious.
Copyrights and trademarks
Auto manufacturers can argue that a kit car maker is infringing on their patents, trademarks, or copyrights. They may take legal action against kit car makers if they feel that kit cars infringe on their intellectual property rights or unfairly compete with their products. European makers, including JLR and Rolls Royce, were quick to pounce on Chinese makers of look-alike new cars that clearly ‘aped their betters’.
Trademarks are easily established and defended, but copyright is less specific, because it was originally intended to apply to literary, dramatic, musical and artistic works.
The British court ruling against JLR’s claim that the Land Rover Defender’s styling was copyright has led to some auto makers ensuring that their body designs are copyright ‘works of art’.
In the USA, Factory Five is a Massachusetts-based builder of replica Cobras and kit cars and, when sued by Shelby, argued that it had not infringed any trademarks, because it didn’t use any Shelby or Cobra logos on the cars or in advertising.
On the question of copyright infringement, Factory Five argued that Shelby didn’t own the actual shape of the Cobra, because it had originated with AC cars in Britain and the court agreed.
In 2022, SEMA, the USA’s Specialty Equipment Market Association, was responsible for forcing the National Highway Traffic Safety Administration (NHTSA) to allow small volume motor vehicle manufacturers to sell replica cars, via the Low Volume Motor Vehicle Manufacturers Act.
The replica car law and implementing regulations allow a low volume manufacturer to construct up to 325 replica cars every year, subject to federal regulatory oversight. Replica cars resemble production vehicles manufactured at least 25 years ago, but are required to meet current model year emissions standards.
In Australia the new ROVER system covers limited production and replica vehicles. Good luck with working your way through the incredible complexity of this new system.
However, these US and Australian laws cover only the legality of making, selling and registering replica vehicles. They don’t prevent a replica car maker from being sued for trademark or copyright violation by the OEM.
We reckon you should research carefully before producing a replica vehicle.
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