Ecommerce and Repairs

Jewelry Discussion
41

Hi Ron,

I am beginning to think that there should be a very drastic
differentiation of price structuring between new merchandise and
that which is old or worn. It is kind of like the old analogy of"
You can't make a silk purse out of a sow's ear" ( Unless you
charge the hell out of it ! )

If you do greatly increase your prices for repair, I hope you won’t
be vociferous in condemning the mining companies or those who won’t
recycle stuff ;-). The chances are that the ring you turn down or
overprice for sizing will be a family heirloom which will never be
recycled for many generations but will be replaced for everyday use
by a new ring made from recently mined materials and the original
ring will just languish in a dusty drawer as a memory of Aunt Gladys
or whatever. It sounds from your posting as though using the buff
may not, in this case, have been the best tool selection in that
case, and that polishing with the Foredom or some other smaller hand
tool may have been more appropriate. Maybe there’s a good lesson
here for everyone to properly think through any repair job and
choose the tools for the job which are likely to have the least risk
attached. ( No criticism of you or your traditional methods is
intended - it would just be good for others to learn from your bad
experience ).

Best wishes,
Ian

Ian W. Wright
SHEFFIELD UK

42

Greg, That’s EXACTLY the way I always ran my business. You’ll never
know if a customer will spend money on a piece.

Great job

Make money.

David Geller

JewelerProfit, Inc.
510 Sutters Point
Atlanta, GA. 30328
(404) 255-9565 Voice
(404) 252-9835 Fax
david@JewelerProfit.com

43 
Look very, very carefully at any job that another bench jeweler has
refused. It ain't always 'cause his or her skill level isn't high
enough...

Also it pays to listen very carefully to the first few words out of
a new customer’s mouth, to clue you to what they expect from you. If
they walk in saying that XYZ Jewelers screwed it up first, and then
ABC Jewelers did too, and then 123 Jewelers also, its probably a good
idea to tell them that you don’t believe that you can do the job,
simply because you will simply become the next one on their list of
‘who screwed up their jewelry’. There’s alot more to succesfully
handling a repair situation than what occurs at the bench. A
succesful. profitable repair begins at the counter, long before the
torch, saw, or file touches the jewelry item. And isn’t completed til
you see that smile on the c/s face and you are paid in full.

Ed in Kokomo

44

I’m curious… did the person who was inquiring about taking in
repairs through a website decide to try it?

How do you handle the “take in” procedures without the client in
front of you? The client can pretty much describe whatever they wish.
The article can arrive as they described it, or in far worse
condition - which of course is gonna be the fault of the
receiver/repair person… YOU!

When that 14K white gold chain is obviously sterling, those channel
set diamonds were really CZ’s, and somebody sized the shank in their
garage with lead solder, all these little things that are normally
caught at “take in” - are going to be your word against the clients.
Face to face these things are usually far less likely to happen…

Brian

45

Fellow Brick and Mortars,

Here’s a switch for you…A lady came into my store recently and
wanted to know whether I could replicate a wedding ring that she had
downloaded from the net. She thereupon whipped out a page with a
picture and I replied that certainly we can do something very similar
to that, but an exact replica would violate copyright. She thought
that would suit her just fine and then went on to explain that she
wanted to keep money in the community and preferred to deal with a
local merchant. It is awfully tempting to suggest to potential
customers that they might use the internet to get ideas and then
come in to us for the final product.

Ron Mills, Mills Gem Co. Los Osos, Ca.

46

Good Morning Ron,

LOL, ask the hairdresser around the corner how often the equivalent
happens as a client comes in with a page from a magazine, picture
from the internet, or "I wanna look like [insert famous name].

In many ways the hairdresser has a similar problem and will generally
use the image as a jumping off point for a discussion as to what the
client really wants as defined by their face, finances and what
their hair can do (very difficult to get a perfect straight hair look
with a heavy natural curl)and what kind of care they can give the
hair and experience.

OR in the jewelry world one could say what metal, shape, and is it
for daily wear in a job with lots of manual handling or for
occasional “look at me” type wear and lastly does it fit the client.
In the case of a ring, a big chunky ring on a 90 pound long slender
fingered woman would look terribly out of place, and unfortunately
like the hairdresser you have to tell her so nicely.

All that being said, personally I think using an image of a design
for a jumping off point to define what a client wants is
considerably different from doing an exact copy. So I think that I
the real question, are you making a copy or a custom design?

Kay

47 
picture and I replied that certainly we can do something very
similar to that, but an exact replica would violate copyright. She
thought

Even an “inexact” replica will violate copyright. From the copyright
law fresh this morning: (marked sections are most applicable)

start quotes

A “derivative work” is a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which
a work may be recast, transformed, or adapted. A work consisting
of editorial revisions, annotations, elaborations, or other
modifications, which, as a whole, represent an original work of
authorship, is a “derivative work”.

102 - Subject matter of copyright: In general (a) Copyright
protection subsists, in accordance with this title, in original works
of authorship fixed in any tangible medium of expression, now known
or later developed, from which they can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine
or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form
in which it is described, explained, illustrated, or embodied in such
work.

103 - Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102
includes compilations and derivative works, but protection for a
work employing preexisting material in which copyright subsists does
not extend to any part of the work in which such material has been
used unlawfully.

(b) The copyright in a compilation or derivative work extends only
to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work, and
does not imply any exclusive right in the preexisting material. The
copyright in such work is independent of, and does not affect or
enlarge the scope, duration, ownership, or subsistence of, any
copyright protection in the preexisting material.

106 - Exclusive rights in copyrighted works Subject to sections 107
through 122, the owner of copyright under this title has the
exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted
work; …

107 - Limitations on exclusive rights: Fair use Notwithstanding the
provisions of sections 106 and 106A, the fair use of a copyrighted
work, including such use by reproduction in copies or phonorecords or
by any other means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a
work in any particular case is a fair use the factors to be
considered shall include–

(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of
the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding
of fair use if such finding is made upon consideration of all the
above factors.

end quotes

local merchant. It is awfully tempting to suggest to potential
customers that they might use the internet to get ideas and then
come in to us for the final product.

Of the 107 “fair use” considerations, (1) this is certainly
“commercial” so that would count against you; (2) the nature of the
work, being jewelry in general might go in your favor BUT the
specifics of the work being not “exactly replica[ted]” very well
might go against you; (3) this will almost certainly go against you
other wise the customer would not get what they wanted; and (4) you
would certainly be either robbing the original’s creator of their due
profits or diminishing the value of their work.

Consult your knowledgeable copyright attorney for specifics in any
specific case and see if your client still wants to “buy local” given
the custom work charges and attorney fees. (Yes, she may get someone
down the street to either do the copying ignorantly or deliberately
in sin.)

James E. White
Inventor, Marketer, and Author of “Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)” Info Sites: www.willitsell.com www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com

48

I was wondering if anyone has made a ring design like this: If you
took a band and cut it like you were going to size it, and soldered a
square w ire about double the thickness of the band, and the square
wire went past the edge of the band and had a tube setting for a gem.
This is for an educational purpose for a discussion I
was having with another jeweler. I will not be making it, it is about
how work is protected by copyright. I believe I have seen something
like this, and that it would not be an uncommon design. If anyone has
a picture of something like this they have seen, and y ou can e-mail a
picture off-line, I would appreciate it. This discussion has to do
with someone thinking they created something that is their design, and
it should be protected while not copyrighted. If anyone has made
somehing like this and I can show her a picture, I believe it would
make her aware of a reality of the jewelry industy that she does not
have. She got pretty hot about it when I told her her design was fair
game to be produc ed by anyone. I was not threatening her by telling
her I was going to make i t. I giving her that I believe
she was not aware of.

Richard Hart

49

Ron,

I have had the same thing happen at least a dozen times this past
year. Explanations as to why vary from customer to customer, usually
involves fear of using credit cards online and not trusting the
sources because they lack a physical presence. I also discuss
copyright infringement, and am usually able to find something very
close that we have made in the past. I guess they listen when we tell
them “If you can dream it, we can make it for you”.

Jon Michael Fuja

50

Richard,

If I understand what you are describing in your educational
discussion, I have, at one time or another in the past, most
assuredly made bands similar to (if not exactly) what you are
describing. However I have no pictures as I never thought it was
really interesting enough to bother with.

Daniel R. Spirer, G.G.
Daniel R. Spirer Jewelers, LLC
1780 Massachusetts Ave.
Cambridge, MA 02140

51 
Here's a switch for you.......A lady came into my store recently
and wanted to know whether I could replicate a wedding ring that
she had downloaded from the net. She thereupon whipped out a page
with a picture and I replied that certainly we can do something
very similar to that, but an exact replica would violate copyright.
She thought that would suit her just fine and then went on to
explain that she wanted to keep money in the community and
preferred to deal with a local merchant. It is awfully tempting to
suggest to potential customers that they might use the internet to
get ideas and then come in to us for the final product.

Yep confirms my overall impression that internet sellers as a group
have a much higher standard than many to most B&M stores I have seen.
Nothing like having to tell your customers to go get ideas from other
people for anything that they can’t just order from Stuller. No
wonder almost all B&M jewelry looks the same as the junk in the
malls.

Paul

52

James,

I think that this will not hold water in a court of law. My job use
to be busting design patents. These are not much different from
copyrights. My job was to figure out much difference you have to make
to not infringe upon the patent. That company was taken to court on a
number of occasions and we always won our case. We was always walking
a very fine line when we did that. Honestly, how many designs do you
see out there that looks like it could have come from another design.
I can think of atleast a dozen right off. I see all the trade
magazines and have an eye for remembering designs. You know there are
allot of laws that are hard to enforce and patent laws are the
hardest.

Rodney

53 
No wonder almost all B&M jewelry looks the same as the junk in the
malls.

Even hough this kind of thing does not deserve a reply, I just
wanted to note that I looked at the beautiful web site of Daniel
Spirer spirerjewelers.com and this statement, most assuredly, is not
true. I noticed also that the poster’s web address was, for some
reason, missing.

Kim Starbard
p.s. we’re all just trying to make a living.

54

Paul,

Yep confirms my overall impression that internet sellers as a
group have a much higher standard than many to most B&M stores I
have seen. Nothing like having to tell your customers to go get
ideas from other people for anything that they can't just order
from Stuller. No wonder almost all B&M jewelry looks the same as
the junk in the malls.

If your intention was to offend, you have met your mark. To me, your
post is rude and unwarranted. To assume that internet sellers have a
higher standard is the height of assumption. You have no way of
knowing if an internet is selling a copy of a copyrighted piece. The
other unreasonable part is that you seem to lump custom jewelers
with other brick and mortar stores.

My opinion is that some copyrights are for something that has been
designed and not copyrighted in the past.

Some designs are variations on a theme and some really unique
concepts. I am not one to judge which is more or less valid, if it
meets legal test.

Theoretically, at some point so many people will have copyrighted so
many designs that there will be nothing to make without infringing. I
do not see your work posted on the Orchid gallery, so judgment and
criticism seem to be easy for some.

Please support your post with an example of your work. My personal
approach is to have people show me a picture of something they like,
not to copy, but to understand the style they like, and I can make
something in the style without infringing on a copyright. There is
nothing morally, ethically, or legally wrong with doing this. It is
a communication tool.

Someone copied a design I did, and I told him I did not mind that he
copied it, I told them that I was embarrassed that someone would
mistake his poor quality work for mine.

Richard Hart

55

Reading James White’s post from a couple of days ago it becomes
clear just how stupid the copyright laws have become. If we consider

(2) to prepare derivative works based upon the copyrighted
work;***... 

(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and The fact that a work is
unpublished shall not itself bar a finding of fair use if such
finding is made upon consideration of all the above factors.

then pretty much any ring using 3 stones of equal size in commercial
settings on a plain band could be challenged by someone as being
their ‘unpublished copyright work’ - in fact, the same could apply
to any plain wedding band. The fact that such designs - in fact
similar designs to almost all the work being produced today - have
been used in a more-or-less similar form since antiquity seems not
to be taken into account. Rather, at some arbitrary point in our
modern time, someone claims that a piece is their own original work
and that they should have exclusive rights to its use and should be
able to prevent anyone else making anything similar either by intent
or as a purely coincidental original act. This is even more so in
music where, with a limited palette of just 13 tones and defined
rules about how a sequence of chords will follow a tune made from
these 13 notes, the chances of a composer being able to produce a
completely original work which bears no similarity to any previous
work is almost impossible. Since tunes are still in copyright from
the 1930’s onwards, just consider how many tunes that represents
worldwide - all the pop tunes of the 40’s, 50’s 60’s etc., all the
‘serious’ classical and church music, all the Broadway shows and
small-town productions, all the radio and TV ditties and commercials

  • what are the chances of coming up with a completely original
    arrangement of the 13 notes which also sounds good? I have just come
    across this personally with an arrangement of a traditional Scottish
    tune I did for one of the brass bands I play with - other than the
    main tune, all the rest of the arrangement was dreamed up to follow
    the relevant rules of musical harmony and progression completely
    originally out of my own head, and yet, when I first played it to
    the band conductor he pointed out that a couple of sections bore
    more than a passing resemblance toparts of an 80’s pop song which
    I’m sure I have never heard before. The context in which the musical
    motifs were used was completely different from the original as was
    the detail of the rhythm etc. but the conductor was still worried
    that it may be challenged by the writers of the original pop song or
    their successors. So, should we be challenging the copyright laws on
    the basis that they are too arbitrary and based on someone’s
    personal opinion too much and should we be demanding that far more
    extensive research is done into past work before any patent or
    copyright is granted? I think so…

Ian
Ian W Wright,
Sheffield UK

56

Hi Ron and others;

I don’t have a problem with people bringing in ideas from the
internet or magazines, as long as they don’t expect me to copy. The
fact is, most of the stuff out there is so generic, it falls into
basic catagories of taste. I look at what they have, then use the
basic language of design that I think interests them and make my own
design. If it’s pave, I do pave, if it’s got channels, I do channels,
if it’s “clean line organic” I go there, etc. It’s not that hard to
pick out the essentials that interest them, since it’s usually things
like hand engraving, or filligree work, or pave, and some styles are
so common I can often find something that is close enough in a
manufactured product I can buy. I offer that as a first, lowest
price alternative, then go up from there. I’m not worried that
somebody is going to go after me for making something “derivative” as
long as I’m not emulating somebody’s very specific style of work, or
a dead bang copy of an existing piece. I seriously doubt somebody is
going to be able to successfully patent something like pave or
filligree. And the further away from the design I can take the
customer towards my own style (whatever that is any more), the
better.

David L. Huffman

57 
then pretty much any ring using 3 stones of equal size in
commercial settings on a plain band could be challenged by someone
as being their 'unpublished copyright work' - in fact, the same
could apply

You’re missing a couple of major points of copyright law and the law
in general. In the first place, in the law in general, anyone can sue
anyone for anything. The purpose of the courts is to sort it out and
(hopefully) be fair. Being fair includes the judge tossing out the
case and awarding costs to the defendant (in blatant cases of
harassment, sometimes more—or sometimes there must be a new suit
reversing the roles). On top of that the plaintiff will be out their
own costs and time. Those factors not only keep the vast majority of
false complaints down they stop many valid complaints. Unfortunately
the defendant will be out time and perhaps other less visible costs
even on such easy wins. No one ever promised life would be 100%
fair.

As far as the “fair use” policy of copyright YOU CANNOT PICK OUT ONE
OR TWO POINTS, all four must ALWAYS be considered. That’s the law.
Another MAJOR factor of copyright law is that access to the
“copied/derived from” work must always be “proved.” So hidden,
unpublished works that no one but the author ever saw NEVER can meet
that condition. (One good reason that sealed envelopes with words or
images of genius enclosed within are totally worthless as a “poor
man’s copyright.”) “Proved,” unfortunately, for mass released works
(e.g., a popular 80’s song) leans toward the assumption for such that
you DID hear it thus even totally inadvertent “copying” without any
memory of it CAN occur. There’s that fairness issue again! (What the
internet and posted images mean to “proved access” is still anyone’s
guess at this point—but clearly someone walking in off the street
and showing one a printout IS provable access.)

Another given of copyright law is that parties independently
creating the same or nearly the same appearing/reading/sounding/etc.
“work” EACH are fully entitled to copyright rights independent of the
other.

In music the “general” rule is 4 essentially identical bars melody
wise comprise copying given all other factors, such as access. You’ll
need to make your own judgements about your work and how you proceed
with it. If you go ahead with it you will be exposed to an
infringement suit—BUT—of course, the only way to never be exposed
to an infringement suit for a musical composition is to never create
a musical composition! Ditto, of course, for a ring… or pendant…
or… Also keep in mind that the mediocre detest the talented and
will use most any ruse they can think of to try to keep them down.
The mediocre HATE fair.

James E. White
Inventor, Marketer, and Author of “Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)” Info Sites: www.willitsell.com www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com

58

Well said, Richard ! Quality of product has nothing to do with
venue. Crap is where you find it, as is genius. Then too, who is to
say where designs come from…all of us are bombarded constantly
with images and examples of designs and we absorb what we see at the
unconcious, the semi conscious and the conscious levels. All these
impressions are fed into our imagination. Nothing is purely original.
And, chances are that either nature or another artist or craftsman
has already made what you consider to be an original design. Even
chaos produces coherent designs ( kaleidoscopes) I am prone to think
that art is more a matter of following logical patterns of balance,
structure, proportions and cohesivness; then, of course, there is
texture and color coordination. I am sure I have left some
considerations out, but the idea is that there IS logic to design and
there ARE rules to follow.

One of the considerations that has been left out of this string of
discussion is the fact that each mode of jewelry delivery has its
own peculiarities. There are the gallery operations, the net
artists,the net hucksters, the brick and mortars who occupy a
sociological need in a small community, the corporate merchandisers
who deliver the bottom line to stockholders, the shlock operators who
prey on ignorant clients and the crafts people who do shows ( and,
who do any number of the previously mentioned functions) This is our
community, and each has his own space. None is better or worse than
another, because each has his own function. All of us can learn from
the others, and none of us is an island. We are a community of people
with common interests, but not necessarily common goals or values. So
be it !

Ron Mills, Mills Gem Co., Los Osos, Ca.

59

Very well put, Ian,

This copyright angst that percolates continually through Orchid has
me scratching my head sometimes. In South Africa in the 80’s we worked
a lot from the Cosmopolitan jewel= lery supplement that they produce
every November. I and many of my fellow goldsmiths did work for
diamond dealers. So the dealer would sell a diamond and then we
would make the setting from whatever Cosmo supplement the design was
chosen from. One of my dealers that I would do work for had ten years
of Cosmo supplements bound into a “book”. This book was his
catalogue, period. The fact that we made jewellery of others people
design worried us not a bit. Most of the advertisers were
manufactures, and they would produce your design in a heartbeat if it
made a sale. Copyright? What’s that? All of us made our own designs
all the time. Reason? The selling of your own design is getting all
cash for something you like to make. Doing a commission is having to
make with less money because the diamond dealer always took a cut. A
major difference.

But that difference mattered not one jot when the ‘porridge effect’
came into play.

It simply came down to this. A lady walks into your workshop and
gives you a picture of a ring she likes, for you to make. You discuss
size, height, width, stones (hers or yours) Then you make it, she
loves it and then she pays you. And you put porridge on the table.

This is called the porridge effect…

So I ask any proper goldsmith this question:

So, you have never made a ring from a picture?

Cheers, Hans Meevis
http://www.meevis.com

60

Ian,

It certainly isn’t accidental that copyright laws are written by
lawyers. Lawyers masquerade as clarifiyers of behavour guidelines
whereas in reality they deliberately obfuscate the rules of the game
so that they can line their pockets. It is a very parasitic game and
we are the hosts to the parasites ! Nowadays it is essential that we
stay away from litigation (only the lawyers win) and stay away from
hospitals because they are liable to kill you ! (Doctors dread the
possibility of hospital admission because they know the risks !)

As for protecting your one offs, forget it ! How the hell are you
going to police the world ? You will be better off concentrating on
creation of saleable goods. Otherwise you will have to go to bed with
the lawyers and they will suck the blood out of your creations ! It
is basically a matter of priorities. If you love to create, then
create…but if you want to do battle over your creations, then
throw the baby out with the bath water…

Ron Mills, Mills Gem Co. Los Osos, Ca.