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
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
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?
(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
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
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
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 email@example.com
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
From: “James White” firstname.lastname@example.org
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