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[Again] Copyrights


#1

B"H
Dear all on Orchid, you gotta read this!

Am putting all of my selected 370 jewellery pictures into a book
form for distribution…“Manual of Diamond Setting”. This will
contain all of my 35 articles plus 8-9 papers, not being "media"
released. …I came across one picture that of "Harley-Davidson"
tie-tack, set with diamonds. I then immediately refused to use it.
Why? Do I need a lawyer knocking at my door? any way that the owner
will hear, or see it, will cause me lotsa $$$ grief

This was a ‘gut’ feeling. You must always use this ‘gut’ feeling if
anything like this, is warranted. When I set a watch bezel, I always
print, “its a rolex-styled, watch frame” ( notice the small “r” ).
Even a large R will infuriate the copyright owners and their
laws,…if its shown…to…the…“public”.

Case in point, a web-site made an ethnic-parody of the children’s
book…“Dick and Jane”…they are now as of last Friday afternoon
being sued to the hilt of using this name, without prior consent.
The web owners, designers, everyone is on the list…so in
closing,… “be ultra careful, you don’t need the $$$
hassle”…“Gerry, the Cyber-Setter!”…hope this email helps you all!


#2
    Am putting all of my selected 370 jewellery pictures into a
book form for distribution...."Manual of Diamond Setting". This
will 

IF they are all pictures you took of jewelry you created
independently then there are no possible copyright problems. All
other situations have copyright issues you MUST be aware of and take
(or previously have taken) proper action on (e.g., written
permission).

    contain all of my 35 articles plus 8-9 papers, not being
"media" released. 

You’d better KNOW what your agreements were with any previously
media released articles. Did you sign away all copyright rights? only
"first publication" rights? all “re-print rights”? Again you MUST
take the appropriate actions SPECIFIC to each article.

...I came across one picture that of "Harley-Davidson" tie-tack,
set with diamonds. I then immediately refused to use it. Why? Do I
need a lawyer knocking at my door? any way that the owner will
hear, or see it, will cause me lotsa $$$ grief 

If you took a legitimately licensed “Harley-Davidson” logo item and
fancied it up with set diamonds then the odds are that
Harley-Davidson would rejoice at your including the photo (though, if
they couldn’t recognize the source, they might ask you to document
it). If you made the logo yourself without a license then you can
still be “BUSTED” for violating their trademark rightsand guess
what, your post (and now mine) make the fact that you were, in fact,
somehow involved in the use of the “Harley-Davidson” trademark easily
COMPUTER SEARCHABLE. I’m certain Harley-Davidson either does in-house
or pays a service to routinely search the internet for user’s of
their trademarks. (Hope you sleep peacefully tonight!)

    This was a 'gut' feeling. You must always use this 'gut'
feeling if anything like this, is warranted. 

Guess you didn’t get no “gut feeling” when you posted! Too bad.
KNOWING the law would work a WHOLE LOT BETTER!

When I set a watch bezel, I always print, "its a rolex-styled,
watch frame" ( notice the small "r" ). Even a large R will
infuriate the copyright owners and their laws,....if its
shown..to..the.."public". 

Actually using a capital R in Rolex would be less stupid than
thinking you’re not violating the trademark by simply substituting a
small r. Using the small r is an ABSOLUTELY CERTAIN VIOLATION of
Rolex’s trademark rights. Using a capital R would be more borderline
and if not a for-sure violation it CERTAINLY could be on the WRONG
SIDE OF ETHICAL depending on how you were using it and what exactly
you were using it on. I STRONGLY suggest you consult your IP Attorney
NOW and STOP your practice of (perhaps fraudulently) labeling your
watch frames! (I for one would also certainly NOT buy from someone
using sleazball tactics to sell me the "not quite the real thing"
jewelry.)

    Case in point, a web-site made an ethnic-parody of the
children's book..."Dick and Jane"..they are now as of last Friday
afternoon being sued to the hilt of using this name, without prior
consent. 

I don’t know the specifics of the case but it very well might be
that the parodiers likely will have a bit of expense but will WIN in
court if the case is allowed to get that far. The body of law that
permits parody (but, of course, with some exceptions) is large and
growing all the time.

    The web owners, designers, everyone is on the list..so in
closing,... "be ultra careful, you don't need the $$$
hassle"...."Gerry, the Cyber-Setter!"..hope this email helps you
all! 

I hope my post helps even more! To put my advice succinctly: Know
the law; use no sleazball tactics; respect trademarks, copyrights,
and free speech rights; and, if you EVER have the urge to take
actions “just to stay under the radar” DON’T DO THEM and DON’T do
whatever it was that you even have a glimmer of thinking you might
need to “keep under the radar.”

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


#3

The Harley piece is a Trademark, rather than an Copyright issue.
Similar, but actually trademarks are more powerful than copyrights.
The right way to handle this, and you don’t need a lawyer, is to
contact Harley Davidson and ask them if it is OK. I am quite sure they
have a department that deals with licencing and trademarks that makes
this kind of call every day.

Am putting all of my selected 370 jewellery pictures into a book
form for distribution…“Manual of Diamond Setting”. This will

    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. People do it all the time, just like they freely use
Harley logos, but the trademark owner regularly lets people get away
with it, they can loose the trademark to public domain. Harley may
already be in that situation, but don’t count on it. Get busted and
they could seize all your books, if a court sees the image as a
trademark infringement. It is easy enough to just ask. I’ll bet they
say OK.

Stephen Walker


#4
    The Harley piece is a Trademark, rather than an Copyright
issue. Similar, but actually trademarks are more powerful than
copyrights. The right way to handle this, and you don't need a
lawyer, is to contact Harley Davidson and ask them if it is OK. I
am quite sure they have a department that deals with licencing and
trademarks that makes this kind of call every day. 

And they’ll say no. One of the Korean members of a motorcycle club I
rode with while I was over there applied for the first H-D
dealership (and eventually got it). H-D’s corporate representative
for Asia, a Mr. Steve Wasser, arrived to check out the scene. At the
time, all of their aftermarket parts, accessories and apparel was
being manufactured in Korea (in Pusan, I believe). Anyway, the
prospective dealer (Mr. Kim) took Steve around to all the shops that
made knockoff H-D accessories and apparel, thinking it would be a
good idea to show him how much interest there was in the product. To
make a long story short, Mr. Wasser went back home to the USA and
promptly sent out “cease and desist” letters, along with
notifications of litigation for Trademark violations to every shop
he had visited. Unless you are specifically licensed, they will cut
you down instantly. They are fierce about it. They have several
Trademarks, including “Harley-Davidson”, “H-D”, “Hog” and who knows
how many more.

One company that manufactures a bike that is available anywhere from
a kit to a turn-key setup utilizing a small block Chevrolet engine
(that obviously is nothing like an H-D) was using the name “Boss
Hog” for several years. Once H-D trademarked the word “Hog”, they
sued and won. This company now calls their product “Boss Hoss.”

Other companies may deal with trademark violations in a more
friendly way, but don’t bother going up against Harley-Davidson.
They are fiercely protective of their Trademarks.

James in SoFl


#5

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
TRADEMARK aspects.

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
quickly.”

  1. If the “work” infringes on a “trademark”…
  2. If the “work” infringes on a registered trademark…
  3. If the work “you create” infringes…
  4. If the work “infringes” and the photograph “infringes”…
  5. If the work you create-and-photograph infringes…
  6. If the work is a trademark (of someone else’s)…
  7. If the work includes a trademark (of someone else’s)…
  8. If the photograph is of a trademark (of someone else’s)…
  9. 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
fuss).

–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
about.

–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
in 7-9)

–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
Windex.”

“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’
solution?”

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


#6
If the work you create and photograph infringes on a registered
trademark you can have big trouble very quickly. 

Oops. I left out “the big one.”

  1. [T]he work [is/has] a trademark (of someone else’s without their
    permission)…

And just for good measure I’ll throw in:

  1. [T]he [item] [is/has] a trademark (of someone else’s)…

–10. See all of the above (previous 1-9). Reading the sentence as
though ANY appearance without authorization in one’s work of someone
else’s trademark is “an infringement” is certainly wrong (emphasis on
ANY). Playing by such a rule is certainly “safe” but, as shown by the
examples above, it isn’t 100% correct.

–11. No explicit authorization is required to sell a Rolex watch
that you got from Rolex, or from a 3rd party supplier, or found on
the street and put up for sale on E-Bay…

More than you wanted to know I’m sure.

James E. White


#7

James in SoFL…thank-you!

I was given a Harley-Davidson object to set, now after reading this
particular email from James in SoFL, Am very glad I didn’t put it
into my archive of pictures. You just never know who will be viewing
my pictures. I have an “Hells Angel” diamond-set monogram picture,
that too, is being pulled as of NOW! Don’t

wanna mess with “those” boys…:>)…Gerry!


#8
    I have an "Hells Angel" diamond-set monogram picture, that too,
is being pulled as of NOW! Don't wanna mess with "those" boys..:>) 

Gerry, that’s a good idea. Back when I was tattooing, I knew some
folks in the New England area whose shops were visited periodically
by members of the Hell’s Angels (often called H A’s or even A J’s).
The scenario usually was that their club members would stop by, ask
to look at any new designs, then proceed to tear up anything
remotely resembling their patch design or logo (most commonly, a
flaming skull in profile, but there are others). It never got rough,
only intimidating.

The only first-hand experience I had was one year when I was working
at the Sturgis Motorcycle Rally. One member of one of the New
England chapters (who happened to be that chapter’s Sgt. at
Arms…and no, I won’t say which chapter it was) was a friend to an
artist we had hired to work in our booth. One of the artists in the
booth across the aisle from us was a newcomer to the art of tattoo,
and was turning out to be an excellent artist. So good, in fact,
that I joked aloud about breaking his hands, or some such nonsense.
You know, sort of an “eliminate the competition” kind of thing. I
guess this H A guy thought I was serious, because he offered to do
just that!! My heart immediately leapt to my throat as I stammered
out the fact that I was only joking!!! Fortunately for the artist,
and my conscience, it went no further.

The point is, it’s good that you removed the picture, even though
nothing seriously dangerous is likely to happen over it. However,
most of the guys in question are “loose cannons” and you’re best off
leaving their “territorial imperative” alone.

James in SoFl