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Diplomacy for a difficult problem


#1

When I started working in the jewelry industry, I was instructed on
two important rules: #1. Do not burn your bridges. ( but this does
not mean that you allow yourself to be taken advantage of) #2. A
little diplomacy goes a long way.

There have been many threads on ethics and although my problem also
falls in that category, my need of help is in “how” to handle my
situation diplomatically so as not to burn any bridges, and at the
same time get the problem solved.

The probem: For many years I have worked for and with a designer.
“Designer A” is also a close, personal friend. Several years ago,
“designer A” had a piece that we thought would look really good
scaled down (From 2 1/2" to 3/4" or around that). The motif of the
original piece is used in many places. The actual piece was a
cleaned up (new wax cut) version of a brass piece from an antique
piece of furniture. I knew someone in a far town who was an
excellent jeweler and wax cutter and who was fluent in this syle. We
sent “Designer B” the piece and back came the excellent rendition
including a mold and piece in gold. “Designer A” has a high-end
private clientale and sells wholesale to some high-end boutiques in
the big city. Now, I have moved to the far town with daily contact
to the big city. “Designer B” is an excellent and original jeweler
who has a small, lovely “all original” jewelry store in the far town.
By now you all know my problem: The scaled down piece is in the
store – alot. In white gold, yellow gold, as post earrings and drop
earrings. I was stunned. Meanwhile, big city “Designer A” is
selling the same piece (sometimes with stone or pearl attached, but
even without, at a much higher price than the far (and small) town
"Designer B" who incidentally does thier own casting. I know
"Designer B" many years and have a very friendly relationship there.
“Designer B” has been very generous with time and knowledge on many
occaisions.

Remember, the far town is small and I live here now. but it is fairly
close to another big city. My first order of business is to know
legally what the situation is. (Who owns the copyright?, it was a
paid, contract wax cutting job - although there was no formal
agreement that “designer B” could not use the design. Obviously,
there was no credit given to “Designer A” or any commisions paid on
sold pieces.

What do I want? I want the piece out the store -now. But, this is a
small community and I am a new comer. It is not to my benefit to
alienate “Designer B” completely. As yet, I have not mentioned this
situation to “Designer A”, but at some point, “Designer A” will
visit me in the far town and there will be Designer’s A’s" pieces
(actually) in the window of “designer B’s” store. As I am the person
who made the introduction between “Designer A” and " Designer B" I
have an obvious responsibility to take care of this matter. Like
many people, I hate confrontations – but there is no way out. Can
anybody out there help me? RL -


#2

RL: What an interesting question! This is a moral/personal issue and
I would suspect you are going to get differing views from various
people on the rightness or wrongness of “knocking off” this design.
My opinions: First of all, the legal situation is murky, as there
wasn’t any agreement that Designer B couldn’t use the design he made.
Secondly, the original design, if I understand right, was off of an
antique and is probably public domain anyway. Something like taking
a page out of The Grammar of Ornament and turning it into a jewelry
design. The idea of using for jewelry is Designer A’s, but is it an
original design? Not completely. Third, I completely disagree with
the quote above. You are not the morality police and don’t have a
right to “get that design out of the store.” The issue is between A
and B and I would stay out of it. If you feel that when A sees the
design he is going to be offended that you didn’t tell, then I would
suggest this: Tell A about B having the design, but explain to A
that you don’t want to be involved in the conflict because you have
to live in that town and don’t need B mad at you. Ask A to wait
until he sees the design to confront B, if indeed that’s what he
chooses to do. Then tell B that A is a dear friend of yours and is
coming to town, you can’t stop him. He is bound to see the design in
B’s window and you didn’t know if A and B had ever discussed it, but
you wanted B to know, so he won’t be surpirsed when A sees it. If
you want to be tricky, you could act as if you thought that B had
permission from A to use the design and say, “he is going to be so
proud that your-all’s design is selling so well here.” This way, A
and B can settle their issue together and you will hopefully be kept
out of it.

I don’t think B is going to take this piece out of his window and I
don’t think A can stop him. I don’t know of what use it’s going to
be for A to confront B except perhaps (should B be that kind of
person) to get B mad at you. And perhaps to vent his feelings on B
if he likes to have negative interactions. Maybe he is pretty
realistic about knockoffs. They’re not nice, they’re stealing, but
they’re going to happen and your best defense is to be thinking up
another new idea while the jackals are knocking off the last one.

Just my twenty cents,
Roy


#3

In the USA, the person who commissioned (paid for) the work owns the
copyright to it. The person who was paid to fabricate it has no
property rights in the design.


#4

Dear Truley frustrated, I see your problem ,but who owns the original
copy rightsmay be mute at this poiint since it was copied from an old
piece, I believe that by changing the copy 10% the original copy
rights are changed, how ever did you or any other party have a copy
right on the changed piece? it sounds as though no one did, I would
ask your big city friends and your small city friends to come
together and decide on a seperate version for each party ,and do it
with the understanding that each will come out with thier own copy
version. If that doesn’t work then advertise that the same article
sells for a much higher price in the city,and it came from your
source but was not agreed to be produced , I personally think that
you should not use this persons services again no matter how good the
friendship is,buisness is a seperate entity, good luck. Tom.


#5

rl -

  1. designer ‘a’ had an original design which he contracted, through
    you, for a wax model to be built by designer ‘b’.

  2. you have discovered that designer ‘b’ has appropriated designer
    ’a’s design as his own & reproducing it without royalties.

you ask

 Who owns the copyright?, it was a paid, contract wax cutting job -
although there was no formal agreement that "designer B" could not
use the design.  Obviously, there was no credit given to "Designer
A" or any commisions paid on sold pieces. 

there does not have to be any agreement with designer ‘b’ to not use
the design it was not his; baby sitters are not allowed to take the
children home with them just because they were once in charge of them

  • they are guilty of kidnapping. designer ‘b’ is guilty of copyright
    infringement and theft of another’s intellectual property. the best
    bet to head off a reputation ruining catastrophe (yours): contact
    designer ‘a’ immediately & outline the situation in full to him,
    apologizing profusely for not doing it sooner. if you do not do this
    within the next 30 minutes ‘a’ could well conclude that your current
    proximity to ‘b’ is what caused the design theft & that you are
    guilty of collusion with ‘b’. because of your 1) prior association
    with ‘b’; 2) your recommendation of his wax working; & 3) your
    current locale, how do you think you could convince ‘a’ that you had
    nothing to do with the theft of his intellectual property?

people: think!
ive


#6

I’m not a lawyer, but know a reasonable amount about copyrights- I
originally had to research it to protect my own work, found it
fascinating, and have read extensively on the topic.

My personal take on it is that while you have a moral responsibility
because you were the means by which this happened, you don’t have the
legal standing to do anything here. I’d suggest telling Designer A
about it, maybe supplying pictures(although that might be best coming
from another source), and having Designer A handle it from there-
probably via a cease-and-desist, at the least, from his lawyer.

Who has the copyright is tricky. It doesn’t sound like it’s Designer
B! If the antique was made within the last 90 years, whoever made
that has the copyright; Designer A’s piece is a "derivative work:,
though s/he holds the copyright on the original modifications s/he
made to it. If the antique is older than that, Designer A holds what
copyright is relevant.

If the antique is out of copyright, though, or the copyright holder
of the antique isn’t an issue, Designer B could argue that s/he did
their own original carving from that original, and although there is
a distinct similarity between it and A’s work, it’s not derivative
from it; both are independently derivative from the same antique
source. This is where it starts to get good for the lawyers! B’s
stakes are high here, since if it is deemed an infringement, B could
have to give A all stock using that design, and all the money made
from sales of it. Plus punitive damages, if A registered the
copyright design before this happened. (Note that A needs to register
it now, in order to take any legal action besides a cease-and-desist.
This could get tricky of B registered it and A hasn’t…)

If I were you I’d stay as visibly out of it as possible, to avoid
being sued myself. depending on how you acted as an intermediary,
both A and B could potentially sue you. My guess is the safest bet is
to inform A informally, and be willing to explain the situation and
how it developed if that’s needed. If A came to town (maybe
responding to you saying that you think there’s a problem) and saw
the display him/herself, then contacted the lawyer, that looks like
the cleanest approach. And copyright law is messy enough without
adding to the chaos!

Good luck- I hope this helps some. Do remember I’m not a lawyer, and
this is in no way legal advice- and the personalities of the people
may make my thoughts really bad ideas in your situation.

-Amanda Fisher


#7

Hi Dada Noir, What I’m going to suggest , since you do not want to
alienate designer A or B is the following.Inform designer A to come
visit you, then suggest that on his own, he visit designer B as You “
suspect” That His original pieces are being copied without your or
his approval by designer B. Now, he will walk in and demand some form
of agreement or insist on a cease and decist order. My next suggestion
is that you find a reputable company that does not engage in copying/
modifying designs and will only produce your items for you and
designer A. Many casting businesses / jewelers typically do what has
been done in your situation. We, on the other hand Produce for many
designers, and big name jewelers and do not ever tell other customers
who we do work for unless special permission has been granted.We
never copy other peoples work and we don’t show other peoples idea’s
to others unless specifically asked to do so . In other words, we are
a high quality casting and finishing shop that protects our customers
designs , ideas and confidentiality. We also do model making by hand,
CNC /cad cam for our customers from supplied designs and often
supply suggestions to make their product easier to manufacture for
them… we take the worry out of making your items for you completely
. We also do Badges ( military, fire, police etc) corporate jewelry (
logo’s , tie tacs, cufflinks, hat pins ) in all kinds of metals If
you would like to contact us, please see bellow. Daniel Grandi Racecar
Jewelry Co. Inc. 52 Glen Rd. Cranston, RI. 02920 Tel/ Fax: 401-461-7803


#8

The first issue that I see here is that neither Designer A nor B own
the design as it came from “a brass piece from an antique piece of
furniture”. Apparently you believed this piece to be in the public
domain (which it probably is) and duplicated it but ownership of the
design becomes highly questionable at that point. It is therefore no
different than if both Designer A and B had separately seen the piece
and copied it at different times. The second issue is that you had no
formal written agreement with Designer B and there was no
understanding at all as to whether or not B could also use the design.
It seems to me that you have no real argument here with B.
Diplomatically I might only see A in her home town and not yours.

Daniel R. Spirer, G.G.
Spirer Somes Jewelers
1794 Massachusetts Ave
Cambridge, MA 02140
617-491-6000
@spirersomes
www.spirersomes.com


#9

Interesting problem. Since Designer A actually came to you with the
piece, did you personally do anything in the creation of the "new"
piece or just send the original larger piece to Designer B? If all
you did was send the piece on to Designer B, then Designer A is
actually the copyright holder. If however, you and Designer A have a
business together, then your business entity could hold the copyright.
Since Designer B was hired to produce the new piece, Designer B cannot
claim any copyright privileges - regardless of whether or not there
was a written agreement stating this.

As to the diplomacy of how to handle the situation, you obviously
will need to either confront Designer B yourself, or inform Designer A
of the problem and let Designer A deal with it. Of course, the other
option is to hire an attorney and let him/her deal with it.

Unfortunately, if you really want Designer B to stop selling the
piece then you will probably lose Designer B as a friend, as Designer
B apparently has no ethics. Of course, the other option would be to
try to work out a monetary solution where you and/or Designer A get a
percentage of each piece sold by Designer B.


#10

I just wanted to add that it’s a myth that one does not violate
copyright if one changes the design by 10%. That just isn’t so. If
one modifies a design, one has created a derivative work. Period. If
one does not have permission to do this, and the design is under
copyright, one has violated the owner’s copyright.

Whether it’s enforceable or not is a separate issue.

Similarly, copying a design in a different medium, with whatever
changes might be necessary in the transfer, is not “fair use”. This,
too, is a derivative work.

One can certainly have a copyright on a design based on an existing
design. One’s copyright extends only as far as one’s creative
modifications go. If the original is in the public domain, this does
not prevent anyone else from using that design in their own work.

-Amanda Fisher


#11

Howdy RL, If ‘A’ is the close friend you say, then they should
understand your dilemma and a letter from a fictitous 3rd party could
be created for the purpose of A to wave in front of B’s nose at the
time of confrontation. “Look what Mrs. Teasdale said she spotted in
your store!” With perhaps a prearranged chiding for yourself as in
"YOU!? Why didn’t you call me?" “Well, it’s not really your concern I
guess.” Or perhaps some type of anonymous letter would work though
there’d be some lingering suspicion I guess. Is it possible A and B
could sit down and come to some arangement or is there gonna be a
lawsuit? If B loses you may be unemployed anyway. Of course none of
this deals with the legalities. I certainly don’t know what they are.
Thsi is what happens without ‘paperwork’. Good luck. Carl
1 Lucky Texan


#12

All, I personally have ran into this problem with casting shops. Now
I would have the casting shop sign a form that they will not
reproduce my design or pull an extra mold from my design. At this
point most shops will refuse to do the work for you. Either way you
are in a losing situation when you or your customers are ripped off
by the casting shop. If you take it to court the only one to win are
the lawyers. Even if you get a judgment in your favor collecting is
almost impossible. I fight this problem and all problems of ethics
by keeping a list of people that have been a problem. I will not use
them again and share my experience with others. Ethics is mostly
personal, so the only way to control unethical behavior is personal.

Gerry Galarneau


#13

Over the past five years, I have been working to become a jeweler.
Prior to that, I was a management consultant, and my inclination is
to respond from a management consulting perspective to your question
about how to handle the jeweler who may have used someone else’s
designs without authorization.

One of Orchid responses to your diplomacy question mentions that
Jeweler B has, on their own, crossed over the line and used design
material that is not theirs. Whether Jeweler B actually broke
copyright law or not may be in question, but it is clear that he or
she used/adapted designs of Jeweler A for their own use and profit,
without permission or acknowledgement of Jeweler A. Perhaps the
original source material is in the public domain; however, since
Jeweler A sent the design in question to Jeweler B specifically to
have a model made, it is highly probable that this was the source of
Jeweler B’s copied designs. In addition, Jeweler B chose a market
remote from Jeweler A where the “pirated” work was not likely to be
seen by Jeweler A, until the unlikely occurance of your moving to this
small town. There is a pattern that appears in this of a jeweler who
takes others’ work, makes minor changes, and uses it for profit in an
arena where they are likely to get away with it.

Much of the Orchid discussion has centered around whose feelings may
be hurt, and how to sustain relationships with both parties. A
deeper issue is what it will be like for you to work in a small town
with a jeweler who has shown equivocal understanding of ethics and
fair play. It would be helpful to think about what else you know about
Jeweler B, to see if a further pattern emerges, and what it may
suggest about your own business as a future competitor in this small
town.

As to the specific presenting issue of the duplicated jewelry design,
I don’t see the need for subterfuge or for protecting either Jeweler A
or Jeweler B from their feelings or their potential anger with each
other. This has happened. You didn’t do it or cause it. It would be
fair to tell Jeweler A the facts of the matter, and leave it to
Jeweler A to handle as they see fit, as they would in any other case
which involved another jeweler who you might not know. This is a
business issue, not a personality conflict, and should be dealt with
in a business-like manner. And, it is not your business issue since
your design has not been copied, and you do not have a financial
interest or a contract with either party regarding this design.

What is more relevant to you, however, is whatever you learn from
your scrutiny of your new competitor in your small town. If this is
just a misunderstanding between Jewelery A and Jeweler B, that is
something that happens now and then, and can be worked out and
accepted. However if it is a more in-grained part of how Jeweler B
does business, then you need to think through clearly how this may
play out with Jeweler B as you establish a competitive business.

Here are some questions I’d ask of myself. How will Jeweler B
relate to your future sharing of these customers in your small town?
How does the market for your jewelery overlap or differentiate itself
from Jeweler B’s market? Will you naturally share and compete for
the same customers? What markets/customers are in your best advantage
to cultivate? Are there jewelry niches that aren’t covered where you
might corner the market? Is your work priced competitively? What
extras can you offer - service, special orders, quick turn-around,
unique designs, custom work, whatever - that will positively
differentiate your store? How will you win and/or share customers when
you have a well-established competitor? And, from early signals, do
you think Jeweler B will play fair? How will you do the market
research to find out? How will you deal with this if they don’t?
Forewarned is forearmed, and you can learn a lot from looking at these
kinds of issues that will help you build a strong business in your own
right.

Marcie Mullaney


#14

Hi! I didn’t see this simple solution presented yet, so thought I’d
chime in. Why don’t you just stop by designer B’s place and tell him
that he better get that stuff out of his window and off the market
before Designer A, who often comes and visits you, happens upon it
some day and flips his lid, since it was Designer A’s idea at first?
Then you’re the good guy, by helping Designer B stay out of trouble,
and Designer A doesn’t need to know.

Andrew Horn
Designer,
Fiodh Furniture Company
www.fiodh.com and soon:
www.mastersjewel.com