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Copyrighting Jewelry design


#1

Dear List Members: I am currently researching copyrighting with a
focus on jewelry and jewelry design. I am curious if any of you
have any experience with copyrighting, specifically protecting a
copyright. Through my research so far I have realized that it is
relatively easy to register a copyright with the US Copyright
Office, however I’m curious how many of you actually do this for
your designs, and if so, how helpful this has been. It seems to
me that actually enforcing a copyright can prove to be tedious,
time consuming, and almost impossible. Am I correct in assuming
this?

And, if I could ask one more question, when responding to this
post, could you please include your full name, and any other
pertinent in case I wanted to quote you in my paper.
Thanks in advance!!

Kim Zercher
B.F.A. Candidate
Tyler School of Art
Jewelry, Metals, CAD/CAM


#2

Kim, Do a key word search in the Orchid archives
http://www.ganoksin.com/orchid/archive This thread was well
covered a couple of months ago. Hank Paynter


#3

Dear Kim, I can see where this thread could lead and the
numerous posts about intellectual property, lawyers, costs,
international laws, etc. Before you get into the gray areas, I
would suggest you try this exercise:

  1. Find a successful jewelry design, produced by a major jewelry
    Mfg. 2. Copy it. 3. Put your copies out into the market place and
    record the actions taken by their Atty. 4. Tell the judge you were
    only doing this for a research paper. Hope this helps, William
    Estavillo, www.natureshop-gallery.com

#4

Dear Kim,

AJM Magazine has published several articles on copyrighting in
the jewelry industry that address exactly this topic. The most
recent one was August 1998, and I’m sure you can find others by
searching for “copyright” on AJM’s Web Site in their index. (Or
call MJSA’s member service department at 1-800-444-MJSA and ask
for their file on copyright. They usually include all the past
AJM articles plus some other info, all for no or only a small
charge.)

From the interviews I’ve done with designers on the topic, I’d
say your description of copyright enforcement is right on the
money. But I’ll be interested to hear about the experiences of
the folks on Orchid!

I’d be happy to speak with you directly and see if I can offer
further leads if you need them. Perhaps we can even exchange
I don’t have any personal experience (outside of
publishing!), but I’ve written on this topic frequently, and am
actually preparing now to start an article on copyright
enforcement for Lapidary Journal for publication early next year.
I’d be interested to hear what you’re learning, and share what I
know about copyright law and the realities of enforcing it.

Suzanne Wade
writer/editor
SuWade@ici.net
Phone/Fax 508-339-7366


#5

kim - 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.

that should answer some of the questions. for more
you can call the u.s. copyright office at (202)707-9100. there’s
a nonrefundable $20.00 filing fee for each piece/work
registered. kim, if you wish my full name & telephone number you
may obtain them by sending an email to my address listed above
orchid’s. hope this helps - ive


#6

I attempted to copyright two designs. I was successful in
copyrighting one design. the second design they refused to
copyright - something about repeat geometry. I did not understand
their refusal and there did not seem to be a way to get specific
on their reasoning. I thought perhaps it was an
error because I felt that the design was unique. I reapplied and
it was again refused without any additional It is a
time consuming process w/o any recourse. I asked my husband who
is a lawyer what one could do. He said I have to file a legal
appeal - more time and hassle plus money for those who don’t know
lawyers. Deborah @kbds.qis.net


#7

Hi Everybody, First I would like to thank you all for the
infor on the silver saddles and bridles and headstalls. I will
start to make them in the new year after I get all these shows
overwith. regarding this copyright thread. I once read that:
if you take a picture or scan of your item and mail it to your
self. (mark on the outside what is in the envelope.) Then mail
to yourself. do not open. put in your copyright file for future
use regarding copyright. I believe the postmark on the envelope
is suppose to prove when you made the piece. I have always had
alot of luck with Judges especially when I have been armed with
all of my documentation. Susan Chastain


#8

Kim, MY father has been in the jewelry business for 35 years now,
I have been in the jewelry business for 12 years… With that said
over those years I have designed and manufactured more pieces
than I can count… Now this is just my opinion, but when I first
started designing I asked my father if we should copyright what
we make. I had the same questions you did. Here is what I have
learned. It would be a waste of money, simply because it would be
way to hard to control or even find out if someone is copying
your pieces. My brother is an attorney and he basically told me
that if one little thing be changed in that design, it is no
longer considered copying what I have made. Being that the design
was altered in the least bit. The time and money I feel would be
spent on this could do well somewhere else… Think about it,
unless you had a major legal team, allot of time to police what
others were doing with your designs, your efforts in enforcing
that kind of copyright would be fruitless. So with that said, I
vote to save the time, money and aggravation of copyrighting and
just know that I was the one who came up with the design. And
remember the design only needs to be altered in the least bit to
make it different in the smallest of ways… Also, I don’t know if
this holds true for where you are from but, I can count of at
least ten jewelry stores in my area that claim to be the maker
of the pieces they are selling, when I know they clearly came
from places like Stuller or other manufacturers…Let’s face it,
not everyone is going to give credit where credit is due… It
isn’t fair but then again, neither is life… I am sure others
will feel different but I would rather be making jewelry than
patrolling those that have to make knock offs of others ideas…
What goes around comes around and it will come around for them
someday… Thanks, Marc Williams http://www.marccogold.com/


#9

To the best of my knowledge copyritghting can be as easy as
sending your own catalog or pictures of your original works in a
sealed envelope to yourself and do not open it that is as good
as a copyright. But as far as my opinion on copyrighting I am
not so sure that it really is necessary if only used as for
peace of mind . But just so you know if someone wants to copy a
concept, they only need to change the product 25% to get away
with it and that’s really not a whole lot. But I do have friends
who have put copyrights on their jewelry and went through the
trouble but unless your designs are going to be very public I
don’t think you need worry about it if you are in a few stores
or galleries across the country.


#10

listen up again people - a verbatim quote from 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). it goes on to say: how
  does one secure a copyright? 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? 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. people, don't go by what
  someone's uncle's 3rd cousin's wife's brother says about
  copyrighting your work. read the above, better yet, find a
  copy of the december issue of 'CraftsReport' & read IT.
  ALSO, highlight the above & store in your personal files
  under COPYRIGHT. i've seen some what judged to be silly
  answers to other topics of less importance, but the
  copyright issue is too vital to our field to settle for
  innane, irrelevant, & inaccurate there WILL be
  a test on the above later. ive

#11

Just for what it’s worth. In the UK copyrighting is automatic,
just put the ? on your work with name address and date, and
that’s it.


#12
    ...copyritghting can be as easy as sending your own
catalog or pictures of your original works in a sealed envelope
to yourself and do not open it that is as good as a copyright.

How difficult is it to send an unsealed envelope to yourself? I
assume the envelope is being mailed so the date of creation can
be established. I hope anyone trying this uses registered mail,
where they seal up all the seams. Then again, why couldn’t you
have a page of designs notarized when you drop by the bank?
Assuming you’re dead-set against registering them. - Dana
Carlson


#13

My understanding is that this is no longer an effective method
of copyright for several reasons. first, I believe that
according to the current laws one must file for a copyright
before they can press charges for violation of copyright.
second, the postmark is nolonger proof of prior creation because
the technology now exists to create a false postmark. I believe
their have been instances of copyright cases where this was a
problem.

Michael / QuestFox


#14

Hi Kim, If it’s ok I’m going to toss something out here about
what I know and feel about Copyrighting. If you are going to try
to copyright any single item that you do, forget it as it will be
too expensive. But if you are going to make duplicates, many
items of the same design, that you are going to market under your
name (i.e.- like those tension mountings that have been talked
about lately). Then I would copyright them, for they would be
worth protecting, and the cost could be included in the cost of
production. I’m sure that’s why those Tension Mountings are ( I
feel) a little pricey. GL jim


#15

Items like the tension mountings are probably patented rather
than copyrighted. Copyrights are cheap to file- $30 and you can
even print out the filing forms and instructions on your
computer. You can download them from the Library of Congress
website.

Rick Hamilton


#16
  According to the current laws one must file for a copyright
before they can press charges for violation of copyright. 

What my lawyer told me is that if you have filed a copyright you
are entitled to reimbursement of all legal expenses in case of a
judgement in your behalf. Sounds like cheap insurance to me. And
by the way, it’s not $20-, it’s $30- a copyright.

Slone


#17

Mailing a sealed envelope of your original creation has never
been proven in a court of law. It was originally devised as a
"sure-fire" way to protect a music composition for years.
However, as of today, the process has never reached any halls of
justice. Musicians, like most artists, didn’t want to take the
chance that it may not be a way to protect their work so they
continued to send themselves registered letters and never opened
them. The new copyright law appears to protect the artist from
the time of their creation takes form. I do agree with several
posts that it is extremely easy to change a percentage of the
original design and you have not violated an artwork copyright.
(I believe someone posted that changing 25% of the original was
sufficient). I know of several manufacturers who do not waste
the time of copyright because of that percentage. So, where do
we go from here? If the percentage holds true…why bother?


#18

Sounds like more of a gamble, than cheap insurance. You see,
it’s true they would pay the court costs, and attorney
fees/expenses, IF you win - but if you go to court and they
prove their design has changed by 25%, you lose. Those lovely
attorney fees are all yours!

I work with litigation attorneys and they are expensive. You may
be lucky enough to have them negotiate a settlement on your
behalf before going to court, but even then, they are expensive.
Court cases are rarely short and sweet. Every time they file a
pleading, every time they write a letter, and every time you talk
to them on the phone, or they talk to someone on your behalf. .
.the cost goes up. That doesn’t include expenses such as court
filing fees, travel/hotel fees, photocopies, long distance
telephone and other expenses, and that’s not knocking
attorneys, they earn their pay. Jan


#19

I wanted to start by saying thank you for all your responses to
my post. I handed in my research paper, and thought you might
like to have a copy of it for your own records. Most of the
was from the US Office of Copyright web site, so I
trust it. I think this will most likely end this thread, but I
would still be curious to hear about any situation where someone
tried to take a case to court, and your results. Otherwise,
here’s my paper, it’s long, so if you don’t feel like reading
this, that’s fine :slight_smile:

Kim Zercher
BFA Candidate
Tyler School of Art

Webster Dictionary defines copyright as the exclusive legal
right to reproduce, publish, and sell the matter and form (as of a
literary, musical, or artistic work).

Although this is correct, the word copyright itself has many
facets. In its simplest form, it is merely the right to not be
copied, however it can be much more than that. Copyright can be a
form of protection provided by the laws of the United States. The
primary purpose of copyright is to stimulate the creation and
dissemination of intellectual works, thus advancing the progress
of literature, science and art. It is important to recognize that
an artist has the right to not be copied immediately following the
creation of an original, individual expression; however
protecting this right can be more difficult if the copyright is
not registered with the U.S. Copyright Office. It is first
necessary to understand what copyright is, before trying to
understand its benefits. Copyright is a form of protection
provided by the laws of the United States to the authors of
original works of authorship, including literary, dramatic,
musical, artistic, and certain other intellectual works. This
protection is available to both published and unpublished works.
(Publication will be discussed in further detail later) The
owner of a copyright has exclusive rights to do and to authorize
others to reproduce the work in copies, prepare derivative works
based upon the original work, and distribute copies of the work
to the public by sale or other transfer of ownership. These rights
are upheld in a court of law, as it is illegal for anyone to
violate of any of the rights provided by the copyright law to the
owner of the copyright. The author, or artist, is protected by
copyright from the instance the work is created in a fixed form.

The copyright immediately becomes the property of the author who
created the work. Only the author, or those deriving their
rights through the author, can rightfully claim copyright. The
copyright remains the property of the author unless specified in
a written transfer of ownership. The copyright is not sold to a
consumer when the products is sold. Just because the ownership
of the piece of art is transferred, this does not mean that
ownership of the copyright also transferred. As an example,
ownership of a book does not give that individual the copyright.
The law states that a transfer of ownership of any object that is
considered a protected work does not in itself qualify as a
transfer of the copyright. The other stipulation in copyright
ownership is when creation of the work of art is done by an
employee. In the case of works made for hire, the employer, and
not the employee, is considered to be the author.

Work made for hire is defined as a work made by an employee
within the description of his/her employment, or a work
specifically ordered or commissioned for use as a contribution to
a collective work. A commission is only considered a work for
hire (where the author is the customer and not the artist) if
ownership of the copyright is clearly stated in a written
contract. The way in which copyright protection is secured is
frequently misunderstood. The copyright is secured immediately
after the work is created in a fixed form.

No publication or registration or other action in the Copyright
Office is required to secure copyright. The right is secured
automatically when the work is created as a material object from
which a work can be read or visually perceived either directly
or with the aid of a machine or device. It is important to
remember that a copyright is secured automatically upon creation.
The publication of the creation is considered to be the the
distribution of copies of a work to the public by sale or other
transfer of ownership, or by rental, lease, or lending. The
offering to distribute copies to a group of persons for purposes
of further distribution, public performance, or public display
constitutes publication. A public performance or display of a
work does not of itself constitute publication. As stated
earlier, a work is protected by copyright even if it is
unpublished. However, as a basic rule, do not exhibit, display or
sell work without properly attaching a notification of copyright
to the object or image. The date of publication is important
because, publication of a work can affect the limitations on the
exclusive rights of the copyright owner that are set forth in the
copyright law, and the year of publication may determine the
duration of copyright protection for anonymous, pseudonymous
works and for works made for hire. Due to the numerous conditions
to date of publication, it is best to err on the side of caution
and apply the proper copyright with the individual
creation from the date it was created. This way, later confusion
can be avoided. The notice of copyright is pertinent information
which accompanies an original creation. The use of a copyright
notice is no longer required under U. S. law, although it is
often beneficial. Use of the notice may be important because it
informs the public that the work is protected by copyright,
identifies the copyright owner, and shows the year of first
publication. The use of the copyright notice is the
responsibility of the copyright owner and does not require
advance permission from, or registration with, the Copyright
Office. The copyright notice should include three elements. 1.
The symbol ) (the letter C in a circle), or the word Copyright,
or the abbreviation Copr.; and 2. The year of first publication
of the work. The year date may be omitted where a pictorial,
graphic, or sculptural work, with accompanying textual matter is
reproduced in or on greeting cards, postcards, stationary,
jewelry, dolls, toys, or any useful articles; and 3. The name
of the owner of copyright in the work, or an abbreviation by
which the name can be recognized, or a generally know
alternative designation of the owner.

For jewelry and other works too small to house the information
required by the copyright notice, a tag can be firmly attached
to the piece with the required Notice of copyright
is also beneficial in cases where a copyright is infringed, and a
legal suit is filed. If the notice of copyright is visible, then
there is no way for the defendant to claim an innocent
infringement whereas, he had no knowledge of an infringement.
This is just one of the many ways copyright protection is
acquired. A copyright will protect the owner of the copyright for
a very specific amount of time. After this time expires, the
work is considered public, and the rights no longer apply. A work
that is created (fixed in tangible form for the first time) on
or after January 1, 1978, is automatically protected from the
moment of its creation and is ordinarily given a term enduring
for the author’s life plus an additional 70 years after the
author’s death. In the case of a joint work prepared by two or
more authors who did not work for hire, the term lasts for 70
years after the last surviving author’s death. For works made for
hire, and for anonymous and pseudonymous works (unless the
author’s identity is revealed in Copyright Office records), the
duration of copyright will be 95 years from publication or 120
years from creation, whichever is shorter.

Ownership of copyrights can be transferred from the author to
another individual, but not as a result of the transfer of the
ownership of the original creation. The transfer of exclusive
rights is not valid unless that transfer is in writing and signed
by the owner of the rights conveyed or such owner’s duly
authorized agent. A copyright may also be conveyed by operation
of law and may be bequeathed by will or pass as personal property
by the applicable laws of intestate succession. Copyright is a
personal property right, and it is subject to the various state
laws and regulations that govern the ownership, inheritance, or
transfer of personal property as well as terms of contracts or
conduct of business. It is possible for the transfer of a
copyright to accompany the sale of an object if it is part of the
written agreement. As a result, when selling a work, it is
important to read all the contracts carefully to ensure that
transfer of the copyright is only part of the transaction if that
is what the parties intended. Copyright registration is a legal
formality intended to make a public record of the basic facts of a
particular copyright. It is important to make the distinction
that registration is not a condition of copyright protection. A
copyright can still be protected even if it is unregistered.
However, even though registration is not a requirement for
protection, the copyright law provides several incentives to
encourage copyright owners to register their copyrights. Among
these incentives are the following reasons to register a
copyright:

  1. Registration establishes a public record of the copyright
    claim.

  2. Before an infringement suit may be filed in court,
    registration is necessary for works of U. S. origin.

  3. If made before or within 5 years of publication,
    registration will establish prima facie evidence in court of the
    validity of the copyright and of the facts stated in the
    certificate.

  4. If registration is made within 3 months after publication of
    the work or prior to an infringement of the work, statutory
    damages and attorney’s fees will be available to the copyright
    owner in court actions. Otherwise, only an award of actual
    damages and profits is available to the copyright owner.

  5. Registration allows the owner of the copyright to record the
    registration with the U. S. Customs Service for protection against
    the importation of infringing copies. For additional
    request Publication No. 563 from: Commissioner of Customs, ATTN:
    IPR Branch, U. S. Customs Service, 1300 Pennsylvania Avenue, N.
    W., Washington, DC 20229. The significance of these incentives
    are especially important if protection of the copyright is
    attempted. Protecting a copyright is much easier if it has been
    registered. The first reason it is easier if that if the
    copyright is not registered, the author (or owner of the
    copyright) can not take the violator to court to settle the
    matter of copyright infringement. The earlier the copyright is
    registered, the more beneficial it can be to the owner of the
    copyright in case of a violation of this right. Registration
    may be made at any time within the life of the copyright. A
    copyright may be registered of an unpublished work, and it is not
    necessary make a another registration of the same work after it
    has been published. It is possible, if the author would choose,
    to make another registration of the copyright of the published
    edition of the work.