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Ethics question


#1

I am peeved. I have been making a design and have just spotted that
a large company in another country is making the same design.

The one I have made, several times now, was designed by me with
absolutely no knowledge of anyone else making it. I really don’t
know if the other company made it before or after I did.

As a self employed jewellery/designer, I am not interested in
pursuing them about copyright, but I am concerned about the ethics
of my continuing to make it.

Has anyone else faced this dilemma, and have you any advice on what
I should do, if anything?

Cheers,
Anna Williams
annamwilliamsjewellery.com


#2

Anna,

You might consult an IP or Intellectual Property lawyer.

A woman on FaceBook mentioned that her design was ripped off by
Urban Outfitters. An IP lawyer saw the post and offered her
services. I did not followup, but a good IP lawyer can guide you in
the right direction. If you are interested in the woman I know, ping
me privately. Their firm is very supportive of the arts and artists
and if they see a good case, it is not your deep pockets you have to
worry about.

Karen
Karenchristians.com


#3

If you have not copyrighted your work you have no recourse nor
reason to get peeved. There is hardly a new and completely unique
design that someone somewhere has not fabricated at some time
(barring just using different stones or metals to claim
’originality’). To research each and every piece one makes would take
a huge database of designer’s copyrighted work. I looked at your
website and saw some cuff links that are essentially identical to a
large manufacturer’s trademarked spiral design: its a good example of
"spontaneous generation"- two people coming up with the same idea and
having zero knowledge of each other’s work. In fact there are a few
pieces I saw on your site that have been done by many metalsmiths.

There is actually very little in truly original designs whether one
is concious of it or not ! Given the same materials at one’s disposal
for fabrication it is quite a task to design something that no one
has thought of previously. Mixed media pieces are perhaps the most
original pieces to emerge in a given market- a good example is
Michelle Friedman and Cara Romano’s work : if you compare the two
artisans, or lets say you took pieces from each persons work and had
to sort out whose work belongs to who you would see the aesthetic of
Friedman’s emerge as original and Romano’s a close but different
design impetus, while some pieces are indistinguishable. if you look
at Mokume gane pieces is it the raw material or the fabrication that
reveals a designer’s unique work? The majority of the
fabrication/design work is very very similar and the quality of the
billet/raw material manufacture is what sets the makers apart…

If you don’t copyright what you believe to be your original
design(s) you will never be able to claim copyright infringement- so
its a good idea to do so if you are an independent that feels your
work is being copied. One problem is in some countries there is no
legal recourse that operates on the same principals as the country
you are based in and in which your work is registered. china is a
good example of a no-win situation for designers: you will never 1)
get your day in their courts and 2) their system is out to protect
businesses in their country. Copying original work for resale/profit
is common and rampant there- the only company I am aware that has
ever won a lawsuit over copyright infringement is Tiffany & Co. NY
after a long expensive fight to force the many manufacturers using
their name, and designs down to selling the stolen works in Tiffany’s
logo imprinted boxes, pouches etc. in their signature colours to
cease and desist and pay fines. Although the fines were ordered by
Chinese courts there is little enforcement of the rulings. the same
is true in other countries where reciprocal laws aren’t in place
regarding design copyrights and the right to manufacture what can be
called an original design even though the actual original was being
fabricated long before the work was being pirated. If your work is
your sole livelihood then copyrighting your original designs makes
sense to protect your interests…rer


#4

Document everything you have done with this design and put it in a
safe after having a lawyer look it over and seal and date a copy for
you. Hope theydo not sue you for infringement. I have heard many
stories about this typeof thing and they never end well.

Gerald A. Livings


#5
If you have not copyrighted your work you have no recourse nor
reason to get peeved. There is hardly a new and completely unique
design that someone somewhere has not fabricated at some time 

Copyright exists from the moment of creation. She has a copyright
and all the protection that goes with it. A registered Copyright
will allow you to sue for damages but you do not need to register a
work to have copyright it is legally inherent in the act of
creation. One can still get a court ordered cease and desist without
a registered copyright.

Copyright is not a matter of uniqueness there is no test for
uniqueness required to have a copyright. It is entirely possible to
have two works that are identical each with a valid copyright as
long as one person did not copy the other.

James Binnion


#6

Hi Anna,

I am peeved. I have been making a design and have just spotted
that a large company in another country is making the same design. 

Most likely you are mistakenly peeved. IANAL. But, the problem is
that any answer to your question is going to have to be based on more
facts than you’ve presented. If you truly (in its legal court decided
sense) did create the design entirely out of your own head then, in
the USA and most countries, you own the copyright to it, period. You
own the copyright to your designs the instant they are in "fixed"
form, i. e., done and you do not have to do anything at all for that
to be a fact. And if the other company did create the same design
then they own the copyright to it too. In the USA for sure (and most
likely in the other country or your country too) you need not
register your copyright for it to be valid or enforceable (though it
is likely less enforceable than a registered one). If either of you
copied (or derived) their work from the other’s, EVEN WITHOUT
REALIZING IT, then the one that created the copy/derivative would NOT
have any copyright rights and would be infringing the other’s rights.

A couple of the gotcha’s: If it is a “signature” piece that might be
recognizable as “trademark” whether registered or not then that and
where the pieces are being sold could also be factors. If either of
your designs is, according to the courts, widely and well enough
known and there is a good likelihood that the other might have seen
it and not remembered then it could be that whoever’s copies might be
the accidental copy are infringing the other’s rights. And also it is
not improbable that you’re not the first nor likely to be the last to
come up with some specific design.

And ignore all the bilge you see posted that tells you how to
"protect" your rights in a safe or sealed envelope and such, the cost
of an attorney to cooperate with you to do such a foolish thing would
be far more expensive than registering the copyright and doing it all
for free yourself would effectively have 0 chance at success.

Visit my http://www.ganoksin.com/gnkurl/ep81dm website for more
including a link to the U.S.

Copyright and U. S. Trademark offices.

So from what we know now, this is not an ethics question. If you
need to explore the specifics then consult an intellectual property
attorney.

Perhaps after you know the facts and an attorney’s opinion is that
they are against you then what you do (or not) might be an ethics
question.

Jim

James E. White


#7

Hello Anna,

The legality of copyrights and trademarks are at the same time
simple and complicated. If what has already been written isn’t enough
to make your head hurt let me add this:

In the end it is as much about money as it is law or “ethics”. Is
the design really worth it? Do you sell enough of them that it is
worth defending with expensive and emotionally stressful litigation?
Does the other jeweler have enough at stake that they are willing to
spend thousands, or more likely tens of thousands to fight you on
this? This is the way it usually works. One party sends the other a
cease-and-desist letter. The second party either agrees to cease and
desist(and then it is all over) or not. If not, then the first party
has to decide to file a federal copyright infringement case. Just the
filing fee is $500. The lawyer will probably ask for a $2,000
retainer. You are now playing “chicken” with the other party over who
is going to give up first because it is just starting to get
expensive.

If the design is clearly yours and provable that the other party
willfully ignored your copyright or trademark. And if the copyright
or trademark is properly registered, you can sue to recover your
costs, the infringer’s profit on the sales and a penalty based on the
size of their illicit profits. This is IF the judge finds in your
favor. Those are a lot of 'ifs". This doesn’t happen at your local
small claims court. It is a federal court jurisdiction.

Sending a cease-and-desist letter often does the trick. I have sent
several. More often that not the infringer agrees to stop. You run
the risk that now they are peeved at being accused and possibly turn
it back on you and demand that you are the one who should cease and
desist.

My advise is don’t go looking for trouble unless you are very sure
that you fully understand how this works, and can be very confident
that it is not anger, pride, fear or another emotion motivating your
opinion that you are right and can win the argument. Just keep doing
what you are doing and mind your own business. If the other party
discovers you are making a similar design and they demand you cease
and desist you can deal with that when it happens. They may demand
damages and all that up front, but they need a federal court order to
compel you to pay it. If you simply agree to cease and desist it will
probably end right there.

Stephen Walker


#8

Copyright or Patent

I am NOT an attorney. This is my opinion based on experience.
However painful as it may have been.

There used to be a very unique style of necklace chain. More than
200 years old and named after the shipwright who fashioned an actual
ship anchor chain into a jewelry necklace chain. Boating had become
slow and he needed another source of income. Thus jewelry. The link
became popular worldwide and was named after him. The chain making
machines that carried his name and the catalogs from manufacturers
listed the style as GUxxx 40-280 in relation to size. (as a part of
the settlement I am not allowed to use the name in print). Along
comes a modern marketing company with a team of lawyers, they
copyright and patent all rights to this name and go after every
retailer that advertises it, every wholesaler that offers it and
every manufacturer that nameplates the machine. In one day history is
re-written.

The term is no longer allowed to be used as the name now belongs to
the marketing company brand name. I supplied 50 year old catalogs,
pictures of 100 year old chain making machines with the name plates.
It did not matter.

I was in violation of advertising someone else’s copyright. Once
they were awarded the copyright, any previous claim or use was
irrelevant.

Just this week a major retailer was awarded the patent of taking a
photographic image of an item for sale with a white background. Will
that stop everyone? No. Will other marketing sites have to pay a
royalty? Maybe. I’m not a lawyer. They also own the patent on one
click shopping carts and royalties are paid and enforced.

A company in France owns the US patent on white metal jewelry
fashioned to look like cable. You know, twisted strands of wire. A US
company owns the patent on yellow metal. He thought he owned the
patent on white metal as well, but found out when every retailer was
served.

When you have a copyright or patent, you are also legally bound to
protect and enforce it. You are required to search out others that
are using it or copying it and notify them in writing of the
violation. If you do not, it may be able to be proved you abandoned
it. From the way it was explained to me, simply notifying them in
writing protects you from an abandonment claim.

If someone is openly and uncontested using your design, it might be
difficult to enforce your copyright. Again, I’m not an attorney,
just pay for them. You can spend tens of thousands of dollars to
prove you are correct. Or a few thousand and settle and get on to the
next sale.

I am not advising anyone what to do or how to protect themselves.
Proving ‘when’ a person first came up with the idea may be easy, it
may not be.

Every single forum posting, web page, image or anything that is
posted to or through the internet is archived. You cannot go back and
change something as they are time stamped.

Copyright is a huge issue right now. Web page code, CAD code, CAM
code, photographic images, Tiffxxx style prongs, anti-tarnish silver,
remember when we could photocopy a magazine article or recipe!

I am in the USA and this applies to US law as the courts have
explained.

Every country has their own laws. If you retail something that is
manufactured in another country but the design violates a US
copyright, then you may be found in the wrong. It will cost you. The
manufacturer in the other country has done nothing wrong. The largest
marketing companies have the largest pool of attorneys. The best
brand names are in the business of creating business, not designs.

Name Withheld


#9

I believe your statement below is incorrect. If you wish to maintain
a trademark, then you are responsible for actively using it and
protecting it. Failure to do so can result in loss of the trademark.
You are not legally bound to protect and enforce copyrights or
patents. If you know about an active infringer of your copyright or
patent, a failure to bring a timely lawsuit or action against them
may give the defendant a defense of implied consent or estoppel,
which can affect your ability to collect damages.


#10

Interesting… I recently discovered another Etsy seller who I
believe straight-up copied one of my earring designs. They are for
bow and arrow earrings, and believe me, I did several searches on
the web and Etsy to see if there were any others like mine. there
were not. I would post links so you all could see and compare, but I
don’t know if that’s allowed… Anyway, Etsy states in their
policies that items which violate intellectual property are
forbidden for sale, so we’ll see how they respond to the email I
sent reporting the other seller. I realize, like everyone else, that
it’s practically impossible to come up with a truly unique design
after thousands of years of jewelry designs being re-created in
different forms. However, I didn’t find ANY other earrings like mine
anywhere. If Etsy doesn’t tell the other seller to remove the
listing, I will just have to get over it, but it is a blatant knock
off.

But hey, imitation is the sincerest form of flattery, righte :wink:


#11

Thanks, Stephen Walker and Name Withheld, for some very interesting
info on this topic. While I am not against someone profiting from
their genius and their truly unique designs and creations, my
experience is that some truly creative individuals don’t worry too
much about their rights. By the time everyone else is copying them,
they have moved on to another creative design or idea. The imitators
can never move as fast as a creative person and are always a step
slow. If I were lucky enough to create enough of a stir or enough
business to attract a cease and desist letter, I’d just consider it
a poker game such as Stephen described. If I lost, I’d just go on to
another creative idea. Part of creativity is staying one step ahead
of the competition. My heroes, the great pros here who talk so much
sense (you know who you are) are role models like that. Your
craftsmanship and skill sell, no matter what “idea” they are
attached to.


#12

Patents are being challenged now, that have been issued on items
that were in the public domain. It started when a patent was issued
for Oxygen.

Then the ridiculous ones were thrown out. It takes time and money to
challenge them, but it can be done and won.

But the reality of the USA court system is in one two words,
expensive hell. Filling fees and retainers are just the start. The
retainer is held until the whole thing wraps up then it is applied to
any outstanding amount. So 2K or in my instance 10K is paid before
you can start to pay for the hourly fees. Just having a letter drawn
up can cost you at least the lawyrs fee times 2. Mine was $550 an
hour. Pre filing letters and such can run you thousands. Rarely is
this done in what we would call a timely manner. While you want
immediate action, unless you are fabulously wealthy and the lawyer
jumps quickly, it can take months to a year or more. During which
time little bits of hourly rates pile up.

Now if you get to the point of needing to go to the filing point and
beyond, get a nice rocking chair and many long good books. Nothing
in the system moves fast. First you have interrogatories which are
questions each attorney gets to ask of the other side, and those take
time to get all the supporting evidence together. Think in terms of
months. Then the scheduling of depositions. Again it takes months.
Mean time attorneys make calls back and forth. All you see are the
billings for thousands a month. Then in some cases there is
arbitration. You get all parties divided into two rooms with an
arbitratior going between the rooms brow beating each side into
giving in. If all else fails, you head to court.

This can take years depending on the state you are in. Mean time you
may even hit the 100K mark and not even made it to court.

Now some words of wisdom. If you save one nickle, take it. My
husband was sued for unfair competition back in the early 80’s. It
was frivilous. Our attorney even said we would win, no doubts about
it. We could get a huge judgement against them. But when all ws said
and done, the other company would just fold and file bankruptcy,
since they were shady, and we would be out everything. The other side
offered to have us pay 3K and they would go away. We did it. It was
much cheaper and a sure thing. To this day it galls me. I wanted to
fight and make them feel the anger that I had. It’s a bitter pill,
but all the time saved, all the grief and mental anquish, plus the
money saved, I have to admit intellecually it was much better.

Never I mean NEVER asume it will be quick, easy, and cheap to follow
through on legal issues. Yet if it is truly your design and you make
huge profits off of it, and want to protect that profit base, go for
it. Just be warned even worse case scenrios are a walk in the park to
the reality of the fight.

Aggie, been there done that, couldn’t afford the T-shirt after.


#13

Hi all

remember seeing a doco on a confessed drug smuggler who pleaded
guilty. He could not understand how the legal fees ran to 3 million
and he pleaded guilty. Just stay away from the second oldest
profession. It will cost you big $$$$.

all the best
Richard


#14

Etsy also claims to allow only handmade, artisan products. that is
the biggest lie going. Most if the stuff on Etsy is mass-produced
crap from China being resold by the same people that rip off Walmart
that sell the stuff at flea markets.

I’ve also encountered TWO people selling bogus gemstones - supposedly
they mind their own materials and do their own cabbing. One guy
copped to the scamand one did not. But I am very, very wary of anyone
on Etsy. I prefer Artfire. They at least have integrity and offer far
more than Etsy to those that use their site as a platform for sales.
And, they strongly enforce their guidelines should a complaint be
filed - unlike Etsy - that pawns off any complaint back on you-the
purchaser-and tells you to resolve it with the seller.

Also-art cannot be stolen. Art is based on Inspiration and that
exists everywhere - people can come up with the same designs,
methods, etc. Counterfeiting is different.

About 2 yrs ago, a woman made a huge public fuss that SHE owned the
design for birds nest rings/earrings. Insanity. Like she was the only
human to have ever seen a bird nest and figure out a way to make them
out of wire and beads.

My husband is an art teacher and web designer. He lectures about this
topic every semester. And, I worked in the legal field for a couple
of decades…

Unless you have a proprietary process and a specific design (like
the hideous Jane Seymour “open heart” design sold by Kay Jewelers,
you really don’t have a claim.

In the early 2000s I worked on a very famous case that involved a
beauty item - it was a huge battle between 2 very well known
international companies. It was determined by a Federal Court that
there was no copyright infringementb/c the technology behind the
design was NOT proprietary or unique. Just b/c the products looked
identical meant nothing. It came down to process and the tech behind
the product, which is common and used in many other products in
other applications.

Simply put, you can’t patent fire. You can’t patent air. And you
can’t patent natural DNA (man made DNA and the tech behind that is a
different story…)

Heck, even Darwin’s evolutionary theory wasn’t his own. Someone else
years earlier in another part of the world had developed it.

Again - we are all exposed to the same inspirational elements. With
7 billion plus people on the planet, things are going to be
"invented" that are duplicative.

You really think only one person invented firee? Or the wheele
Remember, the internet has only been around since the 80s. Prior to
that, the transmission of knowledge and ideas was less than a snails
pace.

Lori

(Who has had the exact names of her designs and product groupings
taken by others and used for identical pieces they made - and knows
how bad it sucks to have that happen.)


#15

Hi all

my experience is that some truly creative individuals don't worry
too much about their rights. By the time everyone else is copying
them, they have moved on to another creative design or idea. The
imitators can never move as fast as a creative person and are
always a step slow. 

so true. I don’t care if someone copies me I have already moved on.
If you make the classic designs I make so be it not my idea in the
first place. But can you make as fast and at the same quality and
same price point?

Be creative and keep changing with your designs. If you make
classics get the quality up and the speed like lightning.

I make both. Classics are bread and butter but my unique designs
extend my range. And are a lot of fun, and good money makers. Classic
designs show quality and sell to the less adventurous customers,
nothing wrong with that.

Had a local jeweller try to copy my reticulated pendants. Did not
care because I was already making something else.

There are those who design and those who copy and will never keep
up. I got this impetus from working in fashion had to change designs
four times a year or get left behind.

Don’t sweat the small stuff. Get on your bench and have fun and make
quality. There is someone out there for every piece you make. If you
can’t do that do repairs, a high level skill and one very appreciated
or become a stone setter an even higher skill. We all have our place
in this trade, finding it is the hard part.

all the best
Richard.


#16

Yes, you are right that a creative person can move on to the next
project. Ido create new things constantly, but when I see that
someone with no imagination what so ever copies my thing it hurts.
It hurts because I have put in the time and effort to sort the kinks
out.

Monica


#17

All these problems and issues about patents being challenged has been
described lately. They are unofficially called “Patent Trolls”. There
are armies of lawyers who’s sole purpose is to look for loopholes in
existing patents or those that are about to expire and take advantage
of it. I would loveto hear what our Aussie friend Richard would say
about it off the record. These parasites are like the guy who just
randomly looked for businesses thatdid not have a handicap ramp and
would sue them into oblivion. In America, we are no longer an economy
of actual products or legitimate services, but we are becoming more
and more an economy of just trading pieces of paper backand forth to
each other that don’t benefit society at all. It’s sad that the end
game in today’s America normally has little to do with what you
produce or what service did you provide. As long as one is
privatizing the profits and socializing the losses, you have won the
game. Nothing else matters.

Rick Powell


#18

I have always thought that the best way to avoid having my designs
copied is to develop my skills to the point that anyone that can copy
my work doesn’t need to.

Dave Phelps


#19

If possible, will the person who wrote about the anchor chain contact
me? This is about a chain design that became the intellectual
property of someone about 200 years after it was first created. Since
you were involved in a legal action, I only want to know if this was
in regards to a copyright, a patent, or a trademark.

As I understand, a trademark does not have to be original. It is
simply something that the public will recognize as an identifying
mark for the person who owns the trademark. This means that it is
legal to establish ownership of something that has been used in the
market for 200 years if the new owner can become identified with this
as a trademark in the mind of the public. Just as the owner of a
trademark can lose ownership if the mind of thepublic shifts and
thinks of the trademark as a general designation of a type of item
that many people produce. So as I understand it, prior use is not the
important issue with a trademark. What is important is if the public
thinks of a particular supplier when they think of the trademark.

So, please let me know if the legal action you describe was in
relation to a copyright, a patent, or a trademark.