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Copyright and research


#1

Have a little question for you all, maybe someone out there can
help. A while ago, when I was in California, my jewelry teacher had
bought some wax models on clearance from a store that was
discontinuing or otherwise getting rid of their wax model inventory
(I don’t remember the exact reason). I picked up one of the leftover
ones and decided to use it to do a design I’d wanted to do anyhow by
adding, carving more detail into it, changing shapes, etc.

There was no copyright anywhere on the original wax, or
even a maker’s mark (as far as I could tell, before I started). So
what I’d like to know is…am I supposed to somehow track down the
original maker of this design if I’d like to make this into a
sellable design? How? Or is a commercial wax with no copyright
on it considered royalty-free and ‘okay’ for me to
use/change? I would think this would be okay, since anybody could
have bought the wax to use and produce unchanged, and I did change it
pretty significantly, but I’m concerned that 1) it still looks sort
of similar to its original state (though if I had another and held
them up next to each other it’d be obvious they were very different
now) and 2) I’m just starting out and I don’t want this to bite me in
the butt later. :confused:

– M. Osedo http://www.studiocute.com “You’ll have dreams and you’ll
go to someone and you’ll say, ‘This is a great idea.’ And that person
will say, ‘No, it isn’t.’ And you have to go back to your cubicle.
Now the question is, who do you believe?” --Bill Cosby


#2

M. Osedo: If there is no ledgible copyright mark on the piece it will
be reguarded as public domaine. I have just applied for 19 U.S.A.
Copyrights this last Dec.-02 Click onto your computer and contact the
USA copyright office or call them,and ask for the regulations of
applying for a copyright for Jewelry. They will send you a pamplet on
that. Wheither you ever apply for a copyright or not it is best to
know what the laws are pertaining to copyright’s The fee for sculptors
has gone up to $30.00 each copyright. Yours Billy S. Bates
royalminiatures.com


#3
If there is no ledgible copyright mark on the piece it will be
reguarded as public domaine. 

NOT! people, below is the answer:

the following was in an article written by Matthew G.
Rosenberger, Esq. (attorney in the copyright field) in the december
1997 issue of CraftsReport, starting on page 33: ‘what is copyright?
copyright law protects authors of “original works of authorship” once
the work is created in a tangible or fixed form. it exists
immediately at the work’s creation. when a potter, weaver or jeweler
has put the finishing touches on their work, regardless of their
intentions for the end use of the piece, only the craftsperson can
claim copyright. what rights do copyright owners have? there are six
exclusive rights: (1) to reproduce the work; (2) to prepare
derivative works based upon the work; (3) to distribute copies of the
work; (4) to display the work publicly; (5) to perform the work
publicly; and (6) to perform the work publicly by means of digital
audio transmission (for sound recordings).’ further, it goes on to
say, ‘what is not protected by copyright? an idea cannot be
copyrighted. it is the original expression of that idea that is
protected by copyright law.’ further, 'how does one secure a
copyright? [italic emphasis mine] copyright is automatically secured
when the work is created. while registration is not required to
secure copyright, there are definite advantages to making it official
with the u.s. register of copyrights. further, 'how long does a
copyright last? [underlining emphasis mine] for works originally
created on or after january 1, 1978, copyright protection
automatically attaches from the moment of its creation and is
ordinarily given a term enduring for the author’s life plus an
additional 50 years after the author’s death.

hope this helps -

ive (who missed the orchid dinner due to “20 minutes away” repeated
by yellow cab driver until our phone went dead - just like the
missing driver.)


#4
     If there is no ledgible copyright mark on the piece it will
be reguarded as public domaine. 

First, IANAL, but this is very bad “advice” that takes the
attorney’s article completely out of context and MISapplies it to a
totally different situation. The attorney’s article was essentially
about “artistic works” and NOT about “wax models” which have some
characteristics of artistic works but will be treated under much
different portions of the law.

The model was created and sold to be “copied” into some cast
material and/or modified before “copying/casting.” The maker—in
this situation—we are by law allowed to assume expressly chose NOT
to notify buyers or acquirers of their “copyright” presumably because
they have no intention to enforce it when the wax model is used for
the purposes it was sold. (If the copyer were to use the wax model to
make a mold to start producing identical wax models for sale then
you’d be in a whole different situation and “equitable rights,”
“copyright,” and more would come into play should the original
manufacturer then assert their copyright rights.)

What is a situation where no copyright notice is supplied but the
presumption would be against the copyer? If you saw a sculpture in a
public square with no copyright notice the presumption would be that
copying it would violate the copyright rights of the sculptor. (The
copyright on the Statue of Liberty expired long ago, BTW.)

In the case of the wax models for the original poster’s question and
plans the only possible issue would be “derivative work” and that
would be pretty far fetched given the apparent intent of the wax
model producer. Could the original poster also have created their
work starting from a plain block of wax? Certainly. Could they have
seen the original wax model (say a rose) and said “hey, I think I’ll
do a rose that looks like—” and carved their own from scratch?
Could they just as easily have seen a real rose (or perhaps many in
the past) and carved similar ones of their own? …with the trigger
for doing a rose being seeing the wax model? Was the wax model
merely a means to reduce the time and effort required to craft a new
rose? Would the wax model producer encourage sales of their wax
models if they started demanding “derivative work” monetary
compensation beyond the cost of the original wax model sale? Would
the courts even allow them the right to? All the answers should lead
the original poster to conclude they are well within their rights to
make their intended use of the wax model with no fear of suit by the
original wax model maker.

    ordinarily given a term enduring for the author's life plus an
additional 50 years after the author's death. 

Currently the term on new works is creator’s life plus 70 years
(except in “work for hire” situations which have their own rules).

James E. White
Inventor, Marketer, and Author of "Will It Sell?


#5
(T)he following was in an article written by Matthew
G. Rosenberger, Esq. (attorney in the copyright field) in the
december 1997 issue of CraftsReport, starting on page 33: 'what is
copyright? (...). 

Hello Ive and All, I read all of this a couple of days ago too at
http://www.loc.gov/copyright/ but it doesn’t answer of my question. I
am/was planning to make a ring. The design of it is very simple: the
ring is a flat tube of appr. 9.6 mm wide to which I want to solder a
bezel (Lee and Dave et al: I can do this by now, but thanks again
:-)) in order to set a cabochon - I was thinking about a nice little
opal. At first, I wanted to make the ring in Sterling and the bezel
in gold, but then I found someone on the net (a co-orchidian), who is
doing this already. I was disappointed because I like the simplicity
of this design (I like to keep things as simple as possible), but
then I thought that it would still be possible to make both the ring
and the bezel in gold. However, a couple of days ago, I found this
ring on the net in gold (again a co-Orchidian). Actually, I find this
ring very often (I found it today too, after reading the mail from
Orchid and visiting www.taboo.com). Two conflicting thesises can be
made about this: 1) if the ring is copyrighted, it cannot be produced
by anyone else than the original artist, unless she/he gives
permission to do so; 2) since the design of the ring is so basic and
so generic, it is a part of the public domain and it cannot be
copyrighted as such - if thesis 2 is true, the message to be found at
any website where this ring appears that all pictures and works on
this particular website are copyrighted is misleading. This is really
stuff for a lawyer (I don’t even want to give me 2 Eurocents about
it), but it is interesting to note that the law speaks about works
which can be copyrighted as “original works of authorship”. The
condition that the work has to be original seems to exclude designs
which have been in the public domain for a long time already - and
therefore the ring cannot be copyrighted. This seems to make sense to
me, because the reverse option leads to absurd situations. Imagine -
to take extreme examples - that someone would copyright the cruxific
or the Star of David - no one else could produce such a piece anymore
unless she/he made alterations to these original designs. Which leads
to another question about which the law seems to be vague too: when
are two pieces similar and when are they not similar? Does anyone
understands this better?

By the way, your designs are now protected for 70 (not 50) years
after your death (what about cloning?).

Best regards, Will


#6
copyright law protects authors of "original works of authorship"
once the work is created in a tangible or fixed form. it exists
immediately at the work's creation. when a potter, weaver or
jeweler 

Well, that’s more what I thought was supposed to be the case
(regarding copyright issues), but my original question was more along
the lines of “how do I treat a commercially-produced/sold wax copy
that doesn’t have copyright on it?” since I reshaped it
to match a (drawn) design of my own. It still has some pretty major
parts that look pretty similar to the original, but most of it’s been
cut apart, patched together, filled in, thinned, readjusted…etc.
Even the parts that look the same have been carved into, since I had
to change a lot to get it the way I wanted it to look. And from the
way it was originally, the design’s got to be at least 10-20 years
old…it was pretty dated-looking when I first started in on it.

Also, it does confuse me a little…is there a big difference
between buying some commercial waxes and casting them straight and
selling them yourself, and buying them and changing them and selling
the resulting jewelry? Aside from ownership of design, obviously, but
financially speaking isn’t that pretty much the same? I can’t imagine
that selling waxes (from molds) would be as lucrative as selling
finished pieces, since anyone could just buy one, cast, finish, and
mold that and keep going…

So how does one know whether it’s okay to sell a design like that? I
mean, if it’s not (or there’s no realistic way of finding out), I’ll
just make the one and wear it myself. ;D

– M. Osedo
http://www.studiocute.com


#7

Alas, you’re mixing up a whole bunch of things including copyright
and registering copyright and patents and patenting and what "work"
is the copyrighted work when a copyright notice is given. (In other
words you appear to be a standard US Public School graduate:-) Let me
try (and risk oversimplifying) one bite at a time:

  1. if the ring is copyrighted,

Copyright is INHERENT the instant a work is in a “fixed form.” You
can go farther and provide notice of your copyright (e.g., Copyright
2003 Bill Smith) on your work and that increases the power of your
rights. You can go farther still and REGISTER your copyright by
filing a proper application, with a fee, and any required deposit to
the Library of Congress Copyright Office (or other appropriate
copyright registering office).

it cannot be produced by anyone else than the original artist,
unless she/he gives permission to do so; 

This is a PATENT concept which is NOT applicable to your ring
example. In copyright law ANY independent creator—i.e., anyone who
is not COPYING—is fully entitled to own copyright in their own
independent work and copy or authorize copying REGARDLESS of whether
or not someone else previously created something similar or even
identical.

2) since the design of the ring is so basic and so generic, it is a
part of the public domain 

Again this is a PATENT concept, not copyright. However, you can
patent something that is basic and generic as long as it meets the
tests of 1) novel, 2) non-obvious, and 3) useful. Obviously something
cannot be both public domain and novel (new). But in copyright, if
you CREATE it you own A (not the exclusive, but A) copyright on your
creation, others cannot COPY your creation (etc., as above). You
obviously also cannot hold a (valid) copyright on something you find
in the public domain and copy but you CAN falsely register a
copyright on it and receive an official copyright
certificate—um…, of course you’re breaking the law.

The Copyright Office does not do anything but accept your word
you’re the creator, it is a REGISTRATION system, NOT an EXAMINATION
system like the US Patent Office. (Australia and some other countries
do have REGISTRATION patent systems so you can get A patent on a
wheel if you wish through those systems—the catch is the validity
of your patent will be judged in court on the three criteria and
likely you’ll waste a pile of money losing.)

the message to be found at any website where this ring appears that
all pictures and works on this particular website are copyrighted
is misleading. 

No, it is 100% correct—it may not give any teeth to the claimant
for generic designs that thousands of people “create” independently
but it’s still correct. And just a standard copyright notice on a
page does NOT mean that the ring in a picture on that page is
protected by copyright. Look at any magazine for example and you will
find it has a copyright notice. The copyright and notice only applies
to the complete work, individual articles and photos NOT created “for
hire” by the magazine (yes, the magazine company IS the creator) have
independent copyright rights (whether separate notice is given for
them or not) and the subjects of the photos further may have their
own copyright rights.

Some magazines require independent authors and illustrators and
photographers to assign all their rights to works the magazine
published to the magazine while others do not. Some web site
developers retain copyright to the web sites they create for others
(though it is foolish for the requester of the web site not to
contractually mandate assignment of the copyright or make certain it
is contractually and at law a “work for hire”—see your IP attorney
for a proper agreement.)

    after your death (what about cloning?). 

I suspect “clones” will be interpreted as different people simply
because they are. Dolly’s premature death doesn’t bode very well for
cloning at the moment though.

James E. White
Inventor, Marketer, and Author of "Will It Sell?


#8

You would probably benefit from doing some research into historical
jewelry and metal work. The design you describe is one that has
been made over and over by every metalworking culture throughout
history. It is safe to assume that the design has entered the
public realm.

Steven Brixner


#9
2) since the design of the ring is so basic and so generic, it is
a part of the public domain and it cannot be copyrighted as such - 

will -

it does not matter how “basic and… generic” the design may be,
someone else thought of it! (ummm, the hula hoop?) my 'signature’
design is so simple that someone informed me “it couldn’t be
copyrighted because it’s so easy, anyone could have thought of it!”

  • “ah, yes,” i replied, “but no one else did.” an elemental version
    appeared in one of the big findings/gemstone catalogs 5 years after
    the design had been online. we exchanged we ‘backed &
    forth’ a politely. the piece is no longer in the catalog. it is
    wisest to not pay attention to any source except the letter of the
    copyright law - i have read emails from people who claimed that if
    they didn’t ‘actually sell their copy for more than the material
    costs, it was legal’ - or if they gave credit to the original
    designer when they sold it - etc. etc. theft is still theft. think
    about it people: do you want to admit that you lack the ability to
    come up with your own designs?? ive ‘life is short, share dessert.’

#10

the reverse option leads to absurd situations. Imagine - to take
extreme examples - that someone would copyright the cruxific or the
Star of David - no one else could produce such a piece anymore unless
she/he made alterations to these original designs.

About 20 years ago I came into conflict with the marketing arm of
one of Australia’s then major airlines, which had copyrighted the
Papilio Ulysses Joesa ( one form of the magnificent Ulysses butterfly
) in the “specimen position” and used it as the widely-advertised
symbol of one of their upmarket resort islands - Dunk Island, where
it was also known as the “Dunk Island Blue”.

Having seen some of my cloisonne enamels featuring the Ulysses in a
Melbourne exhibition, one of their legal suits wrote ordering me to
cease and desist from using “their” butterfly in my work or they
would haul my arse into court. We traded insults via the mail for a
while, culminating in my visiting their head office in Melbourne with
a stack of reproductions of paintings etc of the Ulysses by many
artists. I promised that if they continued with their appalling
nonsense I’d organise every bloody artist in Australia to copy
"their" butterfly in a ( televised ) public place and test their
claim with a class action for restraint of trade. Fortunately sanity
cut in somewhere further up the food chain, I received an apology and
heard no more about it. I’d forgotten all about it until now.

Al Heywood


#11

Dear James,

Alas, you’re mixing up a whole bunch of things including copyright
and registering copyright and patents and patenting and what "work"is
the copyrighted work when a copyright notice is given. (In other
words you appear to be a standard US Public School graduate:-).

Thank you. I see this as proof positive that I am finally
assimilating to this country (the USA, where I live now). Im a
Belgian with a PhD and with political convictions which favor public
education. I often tell this to Americans: becoming a doctor at an
excellent university costed me $ 150. Over here it costs many
thousands of $ … Anyway.

I find this discussion excellent, since I think that it will permit
us to dot the is eventually. I am sorry, but some of what you write
is not clear to me. Thus far, we established that copyright is
inherent in a work the instant it is an a fixed form (OK). Second, I
thought that such a work cannot be produced by anyone else than the
original artist, unless she/he gives permission to do so, but you
write:

   This is a PATENT concept which is NOT applicable to your ring
example. In copyright law ANY independent creator---i.e., anyone
who is not COPYING---is fully entitled to own copyright in their
own independent work and copy or authorize copying REGARDLESS of
whether or not someone else previously created something similar or
even identical. 

I do not understand this. If I make a ring with an original design
and someone contacts me to ask if she/he can make this ring too
(copying) can I, being the copyrightholder, answer with yes or with
no to this request (authorize copying) or not? I thought I could. I
do not understand how I can be (and prove to be) an independent
creator if someone else previously created something similar or even
identical. Further on (next paragraph), you seem to distinguish
between an exclusive and a non-exclusive copyright. Could you please
explain these points?

The third point is about the public domain. You write:

You obviously also cannot hold a (valid) copyright on something you
find in the public domain and copy but you CAN falsely register a
copyright on it and receive an official copyright
certificate---um..., of course you're breaking the law. 

Who decides that something belongs to the public domain? What are
the criteria for it? How can one know that something belongs to the
public domain? Supposing that you are not a crook, how can you find
your way in this?

Fourth point:

(T)he message to be found at any website where this ring ( a generic
design which might belong to the public domain) appears that all
pictures and works on this particular website are copyrighted is
misleading. (me)

No, it is 100% correct—it may not give any teeth to the claimant
for generic designs that thousands of people “create” independently
but it’s still correct. And just a standard copyright notice on a
page does NOT mean that the ring in a picture on that page is
protected by copyright. Look at any magazine for example and you
will find it has a copyright notice. The copyright and notice only
applies to the complete work, individual articles and photos (…)
have independent copyright rights (…). (you)

Okay, this is clear. Thank you for reading. Best, Will

    the reverse option leads to absurd situations. Imagine -  to
take extreme examples - that someone would copyright the cruxific
or the Star of David - no one else could produce such a piece
anymore unless she/he made alterations to these original designs. 

Again this mixes up Patent exclusivity rights (which would NOT be
newly granted to anyone in this example) and COPYright rights. You
CANNOT “copyright [sic] the cruxific [sic]” but you are perfectly
welcome to create and hold full copyright rights, even register your
copyright claim with the Library of Congress, for “A” crucifix image
or sculptural work. Could someone clearly explain to me what I’m
saying in my posts that is NOT getting the message across???
Copyrights, trademarks, and patents are covered by three DIFFERENT
bodies of law, each with their own rules and very little overlap.
Also see my www.idearights.com web site.

A proper “extreme” example for the “wax model” case would be a
child’s coloring book. The child is EXPECTED to color it so even
though technically the child would be “creating” a derivative work it
would NOT violate the coloring book creator’s copyright. Even if the
child were to copy their latest masterpiece page and mail 10 copies
or scan and electronically send out copies to thousands on a
newsgroup they would not be violating the copyright for the coloring
book.

    About 20 years ago I came into conflict with the marketing arm
of one of Australia's then major airlines, which had copyrighted
the Papilio Ulysses Joesa ( one form of the magnificent Ulysses
butterfly ) in the "specimen position" and used it as the
widely-advertised symbol of one of their upmarket resort islands -
Dunk Island, where it was also known as the "Dunk Island Blue". 

I suspect they were trying to enforce a TRADEMARK, not a copyright.
(And here I’d heard the Australian schools were head and shoulders
above the US public schools:-). One of the “funny” things about
trademark law (unless, of course, you’re the recipient of the nasty
letter) is that a trademark owner is REQUIRED to AGRESSIVELY
"enforce" their trademark against possible misappropriaters and
diluters or they can lose their trademark (aspirin and escalator are
examples of lost trademarks). It is actually imperative that the
trademark owner have a record of such “enforcement” so they often
build their file by sending out “long shot” letters even though they
generally (when there is a clear-cut case such as yours was that you
were NOT trying to falsely be associate with them and that you were
not even in the same field*) have no intention of ever taking you to
court.

One of three things happen: 1) the little guy backs down (which
gives strength to the “enforcer’s” position), 2) the little guy does
nothing (which is perfectly appropriate and legal until an actual
court suit is filed) and the enforcer internally decides (and
documents) there is no trademark infringement or there is but the
economics of enforcement vs damage make enforcement an unacceptable
business decision, or 3) the little guy provides evidence (as you
did) that there is no infringement (your threats probably made you
feel good but likely were the least of the rationale for their
apologizing). Well, OK, four things; 4) the enforcer follows through
and sues—but there are many possible outcomes of that too and only
rarely does a suit get pursued to a court decision.

*Trademarks are registered by “classes” (that’s what they are called
in the US) so it is often perfectly legitimate for the same
"trademark" to belong to two or more companies with different classes
of goods or services: Delta plumbing fixtures, Delta Airlines for
example. Airlines (or resorts) and Jewelry are not in the same class
and it is highly improbable an airline (or resort) would have
registered their trademark in the Jewelry class and not because of
the costs but because in trademark law it is “use” that gives you the
rights, not registration.

James E. White
Inventor, Marketer, and Author of "Will It Sell?From: David Barzilay davidlotr@earthlink.net

Apropos copyrighting a butterfly, I thought you would find amusing
that (designer) Oleg Cassini’s lawyers wrote a threatening letter to
NASA about their use of his name on their Cassini satellite
(currently exploring Saturn.) Apparently they had never heard of the
seventeenth century (mathemetician,) Giovanni Cassini, after whom the
satellite was named.You gotta love lawyers! David Barzilay, Lord of
the Rings

From: “James White” james-e-white@willitsell.com

    it does not matter how "basic and... generic" the design may
be, someone else thought of it! 

Irrelevant in copyright law as I’ve previously noted. Ten people can
create the same thing exactly and all 10 are entitled to independent
copyright rights IF such rights are applicable.

 my 'signature' design 

You may want to SERIOUSLY consider registering for federal trademark
protection if it truly is your ‘signature’ design and meets the
criteria for registration. The Nike swish is an example of a
"signature" design that is a properly registered trademark.

is so simple that someone informed me "it couldn't be copyrighted
because it's so easy, anyone could have thought of it!" 

They were wrong as you know, they mixed up the patenting
"obviousness" test which is not applicable to copyright.

    - "ah, yes," i replied, "but no one else did." 

And you mixed up the patent’s exclusivity right with COPYright to
which exclusivity is NOT relevant, only copying.

an elemental version appeared in one of the big findings/gemstone
catalogs 5 years after the design had been online. we exchanged
we 'backed & forth' a politely. the piece is no longer
in the catalog. 

Either their piece didn’t sell sufficiently to make it worthwhile or
you got really lucky.

    theft is still theft. 

True, but independent creation of artistic works is NOT theft and
that’s the law.

James E. White


#12
 Thus far, we established that copyright is inherent in a work the
instant it is an a fixed form (OK). 

Correct.

    I do not understand this. If I make a ring with an original
design and someone contacts me to ask if she/he can make this ring
too (copying) can I, being the copyrightholder, answer with yes or
with no to this request (authorize copying) or not? I thought I
could. 

Yes you can say yes or no to their copying your “original design.”

I think I see the difficulty, I probably didn’t attach the proper
subtle nuances to the words; “the original artist.” In copyright law
"original" isn’t really meaningful except perhaps in the sense only
"originating from within you," whether you might be the 10th creator
or the 1st. And you must be a true “creator,” even unintentional
copying is not (technically) allowable. Your design may very well may
be original (i.e., first) to the world but that is irrelevant. Rather
than use “original” a rework of your sentence with no possible
misimplication of “first” might be:

“If I create (without copying, i.e., from my own mind and hands) a
ring and someone contacts me…”

And if Joe and Jane can honestly say exactly the same thing about
the exact same ring design then they too can say yes or no to copying
of that design.

It is in patent law where “original” (meaning first) comes into
play. With a huge host of complicated rules that differ between the
US and most other countries, being first is an ESSENTIAL element. No
party “creating” the invention after it becomes public knowledge is
entitled to a patent even if they independently created the
invention. (The devil is in the definition of “public knowledge.”)

    I do not understand how I can be (and prove to be) an
independent creator if someone else previously created something
similar or even identical. 

Leaving “prove” out of it for the moment, I don’t understand how you
can’t understand that dozens of people can be "independent creators"
of similar or perhaps even identical designs or things. If they don’t
copy they are independent creators. “Independent creating” has
nothing to do with either firstness or originality. If all 4000+
orchid members were tasked to create a half inch diameter silver rose
pendant I would expect dozens of the resulting pendants to be
virtually indistinguishable from others yet each creator would be
entitled to their copyright rights (none likely would be foolish
enough to try to enforce them against possible future copyers
though).

Back to “prove.” Fortunately in copyright law you do not have to
proactively prove independent creation, it is assumed. The burden is
on the party claiming you copied to prove you did, to the
satisfaction of the court, copy their work rather than either
independently create or copy another’s or a public domain work.
(While technically you would not have to present any evidence you
independently created your work, or copied from a source other than
the plaintiff, I suspect most attorneys would advise you to present
what evidence you could.)

Further on (next paragraph), you seem to distinguish between an
exclusive and a non-exclusive copyright. Could you please explain
these points? 

I meant it to clearly say that a copyright owner is NEVER
guaranteed exclusivity (meaning sole rights) but I didn’t quite
pull it off. Obviously the simpler the copyright protected item the
higher the probability of independent creation by others. A ring as
originally described of which thousands of similar rings exist would
have a high probability of independent nearly (if not) identical
creation by others. A published book of 100,000 words has a pretty
low probability of independent identical (or even near) creation.

    Who decides that something belongs to the public domain? What
are the criteria for it? How can one know that something belongs to
the public domain? Supposing that you are not a crook, how can you
find your way in this? 

A complete treatise on such simple questions is way beyond not
only my capability but that of most, if not all, IP attorneys.
But…, who decides? Everybody, and ultimately the courts if it comes
to that. The criteria are as specific and explicit as expired
copyrights (or patents or trademarks) and as vague as “common
knowledge” but the latter can still be contested in court though the
former would likely be such a clear-cut case it would get adversely
kicked out in round one so few would even try. Two things will best
tell you what is and is not public domain and that is your own
experience and notice (or lack thereof) of copyright on a work (or
copy).

Finding your way is pretty easy I should think, create, don’t copy.
That doesn’t, of course guarantee you will never be challenged. I
suspect that very few jewelers ever sue or are sued over copyright
though. Real world tales would probably make a good thread (but, fair
warning, “presumed” tales of those who only THINK they’ve been copied
would be a bad thread).

James E. White
Inventor, Marketer, and Author of "Will It Sell?


#13

The following was received privately from someone too shy to post
directly but I think the misconceptions are common so this answer
could be useful to many.

            Hi James, Ten people can create the same thing exactly
and all 10 are entitled to independent copyright rights IF such
rights are applicable. On the face of it, this statement seems to
make copyright meaningless. I'm having trouble grasping it.  None
of those ten could sue any of the others? Do they go to court over
who created the exact same thing first? I've been following the
thread with interest.  I used to work for a giftware manufacturer
who claimed if a work was changed 20% there was no enforceable
copyright infringement. Thanks for clarifying, None of those ten
could sue any of the others? 

Any of the ten independent creators could sue any of the others! But
suing does NOT mean winning! To win a COPYright suit the plaintiff
MUST prove COPYING, either willfully or inadvertently, sufficiently
to satisfy a judge or jury. The less unique the item the higher the
hurdles will be to achieve that proof.

Do they go to court over who created the exact same thing first? 

FIRST is TOTALLY IRRELEVANT in COPYright in the case of INDEPENDENT
creation (only in patent law is first relevant including in cases
of independent creation). Where a COPYright plaintiff may gain some
benefit from “first” is if they can actually show they are the “first
and ONLY” creator prior to the second appearance AND their work was
WIDELY enough (or explicitly to a second claimed “creator”) available
sufficient for the court to believe that there was either willful or
inadvertent COPYING.

I used to work for a giftware manufacturer who claimed if a work
was changed 20%  there was no enforceable copyright infringement. 

There is no magic percentage. In copyright law ANY “derivative work"
MIGHT infringe but it is always up to judge or jury to sort that out
from the specifics of the case. If you were to see a rose pendant (or
a seahorse or starfish or nugget or whatever) and decide you wanted
to create one you are free to do so. Copyright does not protect the
"idea” of a rose pendant only the one specific creative expression
(and any authorized copies) of EACH independent creator. (The same
"percentage" myth floats around in inventor circles with regard to
patents too but there just is no such magic percentage.)

(Neither patents or trademarks protect “ideas” either, only
expressions (copyright), embodiments (patent), and “use” (trademark),
can be “protected” and all that “protection” means is that the party
desiring to do the enforcing will have legal standing to, at their
own trouble and expense, attempt to defend their rights in court.)

Does that make copyright meaningless? I don’t think so. To me
copyright in my book and putting notice in the book and spending the
$30 (and 2 published copies) for registering seem like a pretty good
deal (the odds of someone independently creating “my” book are
vanishingly small). But each jewelry creator will have to make their
own judgements on when to consider dealing with notice or
registration of their copyright and perhaps later on enforcement
through the courts. For most simple jewelry where the idea (e.g.,
rose pendant) is old it likely makes no sense. For other creations,
maybe? You have to make your own, informed, business decisions.

James E. White
Inventor, Marketer, and Author of "Will It Sell?


#14
A new artist to a long-running show made these really cool [***]
jewelry things.  A coil of sterling, with a pin & charms/stones on
it.  It was clearly marked patent pending, and copyrighted.  A
worker from another jeweler at the show bought one.  When she got
back to her booth, her boss asked to see it, so the gal showed,
quite excited with her new bauble.  This year, at all the shows the
second jeweler is in, they have these "[***] coils", and are
selling them quite handily, but they have no copyright, etc marked
on them. Is this a copyright infringement/violation? 

First, if no patent was pending, i.e., no Provisional
Application for Patent (PAP) or regular Application for Patent
(design or utility) had already been filed, the new artist is in
violation of the law and committing a crime by using “patent
pending”. We’ll hope an application was filed (and you cannot file a
PAP for a design patent either).

Second we’ll assume “copyrighted” means either a copyright
registration was filed with the LOC or at the very least proper
copyright markings appeared on the pieces sold by the new artist.
(“Copyright,” as we all know, is inherent the instant a work is in a
fixed form but failure to provide notice may lead others to believe
the expression, or utility, of the work is being provided to the
public domain.)

Is their a copyright infringement? Unfortunately you’ll need to take
the exact specifics, one (or more) of the new artist’s works and one
(or more) of the second jeweler’s works, to a genuine Intellectual
Property attorney to get a legal evaluation. My guess is the new
artist actually is making many UNIQUE creations rather than copies of
one original work and that the second jeweler is also making UNIQUE
creations also, not COPIES. The issue then will be how "derivative"
is derivative enough to win a law suit? Copyright does NOT protect
ideas, it does not protect general concepts, it does not protect
functionality; it only “protects” against the copying (either exactly
or derivatively) of a specific “expression.”

If the attorney determines there might be an actionable case there
and the new artist is willing to PAY for the attorney’s services then
the attorney would likely start by drafting a letter and sending it
to the alleged copyist with “cease and desist” language. That may get
the desired response, but it may not. The next level would likely be
filing of a law suit. That too may get the desired response, but it
may not. Now $1,500 to $5,000 has been spent, is it worth it
continuing??? (Boy, these BUSINESS decisions are tough!)

On to patent issues. There are 2 kinds of patents, Design and
Utility (those are the US names, other countries have similar types
but use different terminology). Design patents are rarely worth
anything, only protect the “ornamental appearance” AS SHOWN IN ALL 6
(usually) views of the Design patent drawings, and are only good for
14 years. They are little used because they are expensive and short
lived relative to copyright but in no case would they protect the
idea of [***] jewelry or the functionality of a particular [***]
jewelry concept. A utility patent will, AFTER IT ISSUES (if ever) and
until it expires (about 20 years from application IF maintenance fees
are kept paid), allow the holder to sue infringers of the
functionality claimed in the claims of the utility patent at their
own expense and trouble.

And there’s the crunch. What will the claims be able to claim? For a
[***] jewelry item with “a coil of sterling, with a pin &
charms/stones” what will be the “novelty, non-obviousness, and
utility” that is essential for the grant of a patent? The odds are
heavily stacked against a broad, worthwhile patent for essentially a
decorative item in the jewelry field. If any utility patent can be
gotten at all it likely will be quite narrow and easily worked around
without damaging the essence of the [***] jewelry item.

Also the mere fact of “patent pending” gives the applicant NO RIGHTS
against infringers. Patent rights don’t occur until (if) a patent
issues. And those rights are NOT retroactive (w/1 exception), they
only start on the date the patent issues. (To have any retroactive
rights 3 things must occur: 1) the patent application must have been
published, 2) the final issued claims must be close to those in the
application, and 3) the infringer must have been actually notified of
possible infringement. Even then the infringed party is only eligible
for “reasonable royalties” from the time the party was notified or
the application was published, which ever is later, till patent
issue.)

Whew! So does the new artist have much, if any, recourse. Probably
not much through copyright or patent suits at this point. There is
one other avenue and that is a civil suit on business ethics (or
kindred) grounds but that too would need to be entered as a BUSINESS
decision. One fact of life is that UNETHICAL people simply do not
care whether they are violating the law, ethics, your rights, hurting
your feelings, cheating, acting like scum, or whatever. They want
what they want NOW and they take it, if you win a judgement against
them you’ll never collect it because they won’t pay anyway. The law
and the courts are only good for dealing with ethical, responsible
people.

That will be $600 please:-). (—and that’s not even a legal
opinion)

James E. White
Inventor, Marketer, and Author of "Will It Sell?