Warning to prospective readers: This gets long but the point is
simple, simple (and correct) statements about the law which include a
"qualifier" part can be correct ONLY with the qualifier. FULL
understanding of the qualifier will give full understanding of the
statement. While there very well might be specific cases where the
omission of the qualifier is ALSO CORRECT it is NOT POSSIBLE to
make---or understand---a GENERAL statement without the qualifier---or
full understanding of the qualifier.
IF they are all pictures you took of jewelry you created
independently then there are no possible copyright problems.
Not quite true! If the work you create and photograph
infringes on a registered trademark you can have big trouble very
quickly. Try making jewelry that uses NFL logos without getting
the proper licencing.
The original statement (with the >>) is absolutely correct when
"created independently" is understood the way the LAW understands it
pertaining to COPYRIGHT (see the statement) issues. When your "work,"
as the original poster suggested is simply a diamond decorated
Harley-Davidson logo trademark then the work WILL NOT meet any
court's definition of "created independently." I also think I made
that very clear in the rest of my post in which I also discuss the
But if you want to play "that's a stupid statement because I can
construe it wrong" I'll be glad to play! Except for your
erroneous-due-to-misconstruing "Not quite true!," your statement is
correct when all the words are read and construed correctly. BUT...
How do we cast this sentence "If the work you create and photograph
infringes on a registered trademark you can have big trouble very
- If the "work" infringes on a "trademark"...
- If the "work" infringes on a registered trademark...
- If the work "you create" infringes...
- If the work "infringes" and the photograph "infringes"...
- If the work you create-and-photograph infringes...
- If the work is a trademark (of someone else's)...
- If the work includes a trademark (of someone else's)...
- If the photograph is of a trademark (of someone else's)...
- If the photograph includes a trademark (of someone else's)...
--1. The first construction, the "work" infringing a "trademark",
is clearly the correct construction.
--2. Whether a trademark is registered (federal, state, both?)
is not relevant (though practically speaking the guys with the
nationally registered marks are by far the most likely to make any
--3. As previously noted, "create" or "author" (as a verb) are
COPYRIGHT issues, borrowing for personal profit someone's trademark
is a TRADEMARK issue so "you create" has no business being in the
sentence, it just confuses. (Note that you apparently use the "you
create" part in the copyright legal sense in your statement even
though you chose to construe it as "personally make" when
mis-interpreting my statement, i.e., while you know the words you
don't understand the words.)
--4. Funny that bit about "infringes." Yep, ONLY IF it does in
fact "infringe" can you ---generally---have "big trouble. (There
are jerks who do overagressively go after non-infringers and, in
fact, the law to some extent encourages this.) Also see 6-9 below
for more relevant to this construction.
--5. Pretty close to just a restatement of 1. where the hyphenated
phrase serves to define specifically what "work" is being talked
--6. Can you make a jewelry piece that is, in fact, identical to
someone's exact trademark without infringing their trademark? The
answer is a resounding YES. The fundamental rule of trademarks is
"likelihood of confusion" (to the relevant buyer's/viewers). In
fact the exact same trademark can be used for two non-related sets
of goods or services by two (or three...) unrelated parties. Would
you mistake "Delta" in relation to airlines for "Delta" in relation
to plumbing fixtures? No. If you happen to make a diamond studded
silver ear ring with a "swish" exactly proportional to (or close to
or similar but distinctive from...) the Nike "swish" trademark
would you infringe Nike's trademark? If it was part of a line where
you also had a 3-bar Adidas logo then almost certainly yes but
baring that then it's extremely unlikely you would get in "big
trouble." (Little trouble perhaps in the form of an easily answered
"cease and desist letter" would also be very unlikely). And if you
wanted to push big trouble or little trouble all the way to court
you very likely might win. A distinctive black and orange logo with
the words "Harley-Davidson" in it hardly qualifies as unlikely to
be confused with a LICENSED version of same. A five pointed star, a
rose, and a thousand and one other things commonly appear in BOTH
jewelry (or creative works) and trademarks (which are creative
works themselves always but only in the COPYRIGHT legal sense
sometimes) without there being any trademark infringement. (...more
--7. Did you see James Miller's gorgeous plique a jour? What if
there is embedded therein, in one of the many small windows, an
exact Nike swish? Would he be infringing Nike's trademark? You will
be laughed out of court to even suggest such a thing. If it were
the prominent feature then it gets more questionable----if it were
on a shoe sculpture then... But what if the image created was a
farm scene where a gas tank on a stand in the foreground
prominently displayed a shell logo of Shell Oil Corpand the
barn was writ large with "Chew Mailpouch Tobacco"? Are these to be
found by the courts to be trademark infringements? Clearly they are
well known trademarks and clearly they are copiedbut they are
NOT the essence of the work, they are evocative of the nostalgia of
the farm scene--they do NOT infringe. (...again, more in 8-9)
--8. Just a photograph of a trademark is a photograph of a
trademark. Nothing more. The photograph itself is extremely
unlikely to be construed by the courts as infringing the trademark.
In general neither photos or publishing of photos infringe anyone's
trademark rights (if I recall correctly there was a famous
photograph of some well worn Converse high tops where Converse
sought in the courts to get a piece of the print sales and got
severely (figuratively) beaten about the head and shoulders before
escaping the courtroom with their lives!--perhaps my memory is
faulty and/or I exaggerate a bit). Of course you could post
photographs of the Rolex trademark (and maybe of a few Rolexes)
prominently around your jewelry displays then sell watches marked
"rolex-style"but that has the distinctive ODOR of FRAUD and
would certainly be a gross abuse of the Rolex trademark too.
(...again, more in 9)
--9. Supposing the farm scene from above was a photograph. And
when blown up to poster size a yellow and green tractor and a white
and red combine (marked with something that looked like "H" but
with a middle vertical bar) and a Firestone tire could all be
easily seen and recognized. The photo has 5 recognized trademarks
in it. Does it infringe them? No way. Would a painting of the same
scene? Would 20 paintings and 200 photographs of the same scene
done by an art class? Would any of the paintings or photo's
infringe any of the other artist's works? Okay, that last one is a
whole different topic but, absent copying, the answer is still NO.
Louie said, "...then the Realtor grabbed a Kleenex off the Formica
countertop and rubbed the Plexiglas where he'd just sprayed the
"Oh," Louige intoned, "You'se mean instead a' dealin' wid da
stinking fish lyin' on da porch the real estate salesman grabbed a
facial tissue off the resin impregnated heat and pressure sealed
laminated sheet material countertop and rubbed the clear resin
substitute for glass where he'd sprayed the winder cleanin'
Eh, you get the point. Those uses of trademark DO NOT infringe
anyone's trademark rights----but one doesn't have to make the point
except for the benefit of those who cannot comprehend the meaning of
the qualifier "infringed" in the statement under discussion.
James E. White
Inventor, Marketer, and Author of "Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)" Info Sites: www.willitsell.com www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com