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Exclusive design and sales


#1

I just received a really interesting business proposition, and I
would really like to hear some feedback before I create a contract
with this customer.

The background: Last summer, I sold a couple of pieces on Etsy. The
buyer was happy with the quality. She contacted me in the fall, and
asked for a small discount for buying multiples (3 each) of the same
pieces. I was sure she was reselling them, but I was fine with that.
I haven’t done wholesale, but I want to. I expected the discount to
be deeper than what she requested, so I was pleased. She was happy
with the pieces, and requested some more. She pays on time, and
seems comfortable to work with. I request 50% down before I begin
work, and expect the remainder to clear before I ship the completed
pieces. We have been using an informal email contract, in which I
specify terms, and she responds by agreeing. She has been great to
work with, and everything has gone smoothly.

The proposition: She recently requested that I create 2 new designs
to be sold to her at $150 and $50. She gave some very loose
parameters, leaving the designing completely up to me, so that I can
present designs I can afford to make at those prices. After she OKs
the designs, she will puchase 5 of each. She requires that these
designs be exclusive designs, to be sold only to her, and that is
where my concerns lie. I explained that I would prefer to retain the
rights to my own designs, although I don’t sell widely. She has been
very pleasant, but made it quite clear that without the exclusivity,
she could not use my designs.

I want to work with her, but I sense the need to be cautious about
how I continue. I will specify terms in a written contract, but
there are some issues to hash out first. Are there industry
standards or common practices that dictate a time limit on
exclusivity (eg 3 years form contract date) or that govern how much
a design needs to be changed before it is “different enough” to not
violate the exclusive nature of our contract? How much more
expensive should an exclusive design be? Also, I don’t know anything
about where/how she is re-selling my pieces. Are there issues I
should be concerned with?

Thanks for any thoughts/advice!
Lisa W


#2

Hi Lisa,

I am coming from business perspective not a copyright one. I am not
from the Jewellery a forum member her helping my daughter out. I had
run a successful business till it was sold a few years ago and now
am retired.

What are the business outcomes for both, as I see or read it they are
You want to continue the relationship but are concerned about the
design ownership.

Your customer wants exclusivity to the designs and doesn’t offer
anything in return except an order for 5 peices…

Option 1. At those prices you indicated you are probably not
charging her for your design effort, you are probably just making
some money on the manufactured piece so I suggest you negotiate a
price for the design and charge that separately…then your customer
will be aware she has paid a price for an exclusive design… At the
moment it would appear that is “given away” with the order.

Option 2 If you believe that your customer is asking for design
ownership because she may have them say made on mass in say India and
your providing “samples” then I suggest that you negotiate
exclusivity on the basis that these design can only be manufactured
buy yourself/company. And have that in a written agreement between
the two parties. You can then value or not your design input as a one
off cost.

Option 3 is a combination of 1 and 2.

Given you don’t know where these pieces are being placed it is not
obviously effecting where you are currently selling, the world is a
big place so there might be a good opportunity for you. That said you
need to make sure your are not the one being used in this
relationship. You have skills and talents obviously otherwise this
customer would not be coming back to you, be cautious and it is OK to
be protective of your offering and designs. Make sure it is a fair
outcome for both, at the moment your customer seem to want her cake
and eat it too without giving you a slice!

In this situation it would have been nice to pull out a company
policy, now I suspect your a small operation and might not feel the
need for such a document but it might have been handy now to of
handed her. It doesn’t need to be anymore than an A4 page with what
you are already telling your customers now. e.g. 50% deposit on
customer specific designs balance before delivery. Copyright of all
designs are yours but ownership can be negotiated for an agreed
fee.(That is if you so wish) this is just an example of what might be
in your " company policy" statement. Doesn’t need to be War and Peace
just a statement document of how you conduct your business. This can
be tabled when you have customers and can form the basis of
discussion and possibly negotiations should you so wish. If you don’t
then it becomes how your business operates.

You of course can be selectively flexible with the customers you so
choose.

My 2 cent from a remote business perspective. Hope I have given you
a few ideas moving forward.

Good luck, will be interested how this situation turns out.

Regards,
Ian


#3

Lisa - a suggestion for you.

Have you considered giving exclusivity of the designs to your client
provided her account remain active. If orders lapse or the value sold
within a period falls below a pre-determined level the exclusivity
becomes void and you are then free to offer to others. It would be a
shame if you went to the trouble to continually create new designs
only to not be able to offer them to another client even when your
current client is no longer dealing with you. I have had dealings
with a caster who retains the rubber mould (which you have paid to
have them make) and if you don’t have dealings with them for 12
months assumes the right to include your design in their catalogue.

Roger


#4

Some thoughts…

A contract is an agreement between parties and short of illegalities
all particulars are whatever is agreed upon. So if she wants
exclusivity, its on the table. You’d be agreeing to produce for her
and no one else(Re: the particular designs). But, you’d be giving up
the right to use those designs. For a small batch it doesn’t seem
beneficial to you unless you think this is a big step and you’re
willing to forgo some things. I mean, couldn’t you expect to sell 5
pieces of each anyway, over time? Now if she’s ordering a hundred at
a pop that would change the importance of exclusivity and the impact
of this contract, for you. I dunno, for a thousand bucks, to me, it
sounds like she’s demanding too much.

After she OKs the designs, she will puchase 5 of each. 

The pessimist in me says beware she might be using you for free
design work. The offer of buying 5 pieces ‘could’ be a teaser to get
you bite. What happens if she declines all designs? If she wants your
exclusivity and wants you to develop a design, she should be willing
to give something in return…like at least a design fee or
non-refundable deposit because you’re going to do this work on
speculation otherwise. Is she bound by the contract not to produce
them herself? How could you even enforce that? You can’t.

An unrelated story that came to mind because the beginning seems
familiar. I had this customer who bought a few smallish to medium
things. He comes in one day and wants a large diamond ($18K if I
remember correctly) and writes a check. OK, so I know him, we’ve done
business with good results, here’s where I cash in, right? Wrong.
That check bounced like a superball, for months it dragged on. Later
it turns out he has a gambling problem and used me to finance his
gambling debts. My point here is to be wary of being set up. I’m not
saying this IS the case, but it MAY be the case.

I’d ask her why she needs an exclusivity clause. And such a clause
should come with some sort of benefit to you.

On the other hand your risk is relatively small. If you get paid
something up front and it works out, you’re ahead.


#5

Lisa,

SELL her the designs. Exclusive is not free.

The IP world is filled with lots of nasty lawyers who can’t get
honest jobs. Take the $$ (as much as reasonably possible) and don’t
look back. She gets the 2 designs forever, while you have an
unlimited supply of new ones.

Jeff
Demand Designs
Analog/Digital Modelling & Goldsmithing
http://www.gmavt.net/~jdemand


#6

some ideas:

  • you are licensing a copyright to the designs

  • you can make the exclusivity tied to a certain sales volume, 5
    pieces a year, 50 pieces an hour, whatever you decide

  • it is not a good idea to part with the copyright. although this is
    technically a ‘work for hire’, if you want to improve on the design
    theme as the years pass, why cut off your arm for $200? doesn’t make
    sense

  • geographical limitation for exclusion: ie, within 10 miles of her
    store, etc.

  • and,m without the non-exclusivity, you can’t use her

or, simply keep it informal. i.e., you keep buying from me, I’ll be
too busy to sell to anyone else.

but, in general, it is a poor business idea to have more than 30-35%
of your volume tied to one particular thing.

as always, use sparingly, your results may vary.

warm regards
Mark Z, Denver


#7

Hi Lisa,

First let me reiterate- get everything in writing…an email is not
binding. Secondly- It is fine to accept commissions- that is
essentially what she wants to commission you to make x for her-
However, make it crystalline that You Always retain the rights to
your designs, and that - for a fee (set an appropriate fee that
accounts for your overhead,basic consulting fee ( hours spent
discussing the piece and its specs, materials, gems or other
embellishments, etc.), design time ( time you spend coming up with
the proof and possibly the master) she will have the sole rights to
selling that design and have her sign a non-competition clause ( a
document that specifies she may not take that design and modify it in
any way so that it then could be translated as hers). Before entering
into a contract with this person you should define and in absolution
ask for a written list of where and to whom the piece(s) will be sold
or shown, and include in the final contract document that any other
sales or display venues must be approved by you before she proceeds
with any reselling, promoting, or use of the design,and/ or any
copies of it. It should be expressly stated that she may not enter it
into any juried or otherwise, competitions, shows, or promotional and
advertising materials that imply in any way it is anything other than
a commissioned work piece- though you may stipulate that it is a
collaboration if it is such a piece or a collection ( she may not
make any stipulations whatsoever regarding the design(s) without your
approval and written permission to use your name, logo, likeness,
mark, etc. ). You should clearly state that you do not grant her the
rights, express or implied to have it mass produced as a sole
venture, that is without your getting what is effectively all
roylaties due you from any resultant and cummulative sales of the
items - if you grant the rights to copy, reproduce, or market the
line or any part thereof.

Essentially, you are agreeing that you will create the designs - for
which you should get a seperate fee, and that you will sell the
collective works only to her, with the stipulation that she may not
resell the designs as hers, or to anyone else without your
premission and all pieces will be made displaying your makers mark or
logo, also that she will not then have them reproduced unless you
permit it, and if so you reserve the right to approve or dissapprove
the reproduction, and if approved you expect a percentage of each
sale resulting from your design being promoted, sold, etc…You are in
the business to profit from your work when you accept commissions -
so ensure your compensation is appropriate and you retain the rights
to using your designs for any purposes that result in reproduction,
changes, sales or marketing and that you retain the rights to
decisions on marketing and promotional venues on which your designs
may or may not be displayed, and. additionally that you are not
granting license to modify the designs for sale or reproduction
without another summary document resulting from further negotiations
of the terms between you and your client. The contract is binding,
and you control all decisions as to its reproduction, but she will
be the exclusive reseller of any designs at this time or resulting
from further modifications between you that excludes any and all
third party iintroductions into the contract. If you have any other
questions feel free to contact me…rer


#8
She requires that these designs be exclusive designs, to be sold
only to her, and that is where my concerns lie. I explained that I
would prefer to retain the rights to my own designs 

Well, Lisa —why? The woman wants you take make jewelry for her, and
she’s going to pay you handsomely for it. Some agreement that only
you will make the pieces I could see - that she won’t take your
designs to Taiwan, for example. But to keep some rights for work that
you likely won’t ever need again at the expense of a choice
agreement? Why? Do you have other people waiting in line to buy these
designs? Just make more… We do this pretty much every day -
jewelry gets made and delivered, then we make more and deliver that,
day in, day out.

http://www.donivanandmaggiora.com


#9
you are probably not charging her for your design effort, you are
probably just making some money on the manufactured piece so I
suggest you negotiate a price for the design and charge that
separately 

If you do that, then the design is “for hire” and she owns it
outright - she paid for it, after all. Personally, I see no problem
whatever with designing for a store and letting them have it
exclusively, as long as it’s all understood. I also see no reason to
have some long-winded contract, which is a sure way to poison a
relationship. “I’ll make it, you’ll buy it, once it starts the buyer
is committed, give me a deposit, we’re done” pretty well sums it up.
But the people I deal with have ethics, too…

http://www.donivanandmaggiora.com


#10
If you do that, then the design is "for hire" and she owns it
outright - she paid for it, after all. 

Based on my many years writing custom software, I disagree. In the
US, it is a work for hire only if the designer is an actual employee
by IRS rules, or the contract explicitly states that it is a work for
hire. Actually, I would never do it that way - it establishes a bad
precedent. I would charge for the copyright assignment.

Al Balmer
Sun City, AZ


#11
it is a work for hire only if the designer is an actual employee by
IRS rules, or the contract explicitly states that it is a work for
hire. 

Well, Al two things I don’t pretend to be are a lawyer and a doctor.
But it has happened - if you sell someone an orange, you don’t get
to keep the money AND the orange. If you sell someone a design, they
bought the design, it is theirs. Not getting called on something is
different from what happens if they take you to court. They paid you
for a design, they will win. There are roaming jewelry designers
selling renderings to the bigs - when you buy it, you own it, rights
and all. Agreements can always be made to the contrary, but failing
that - if the customer in question is charged for a design, she paid
for a design, she gets one, and it is her property.

I know some people are all ego about “their designs” and charge for
design but keep the renders when the deal goes south, but that
doesn’t make it legal. Cash in exchange for goods and/or services is
the basis of any economy.

http://www.donivanandmaggiora.com


#12
it is a work for hire only if the designer is an actual employee
by IRS rules, or the contract explicitly states that it is a work
for hire. Well, Al two things I don't pretend to be are a lawyer and
a doctor. But it has happened - if you sell someone an orange, you
don't get to keep the money AND the orange. If you sell someone a
design, they bought the design, it is theirs. 

Of course. “selling someone a design” is when you assign the
copyright. However, when you design something to specifications,
it’s still yours until that copyright assignment is done. Or, as I
mentioned, if the contract explicitly states that the product is a
work for hire. Many times I wrote custom software and assigned the
client complete but non-exclusive rights to it, meaning that I could
use all or part of it in other work. If a client wanted exclusive
rights, that can be arranged, but he pays more.

Tell you what - here’s an article written by someone who does
claim to be a lawyer: http://www.copylaw.com/new_articles/wfh.html

Not getting called on something is different from what happens if
they take you to court. They paid you for a design, they will win. 

They paid you for whatever the contract calls for. If it calls for
exclusive rights, that’s what you give them. But it doesn’t happen
automatically, you need to formally assign those rights.

Al Balmer
Sun City, AZ


#13

An addition to my other post. I stated earlier that a contract can
specify that a work be a “work for hire.” That’s correct, but what I
never realized is that this can be done only if the work falls into
one of nine narrow categories, which include neither jewelry design
not software.

Fortunately for both me and my clients, as I said, I’ve never done
that. I’ve always dealt with the copyright assignment.

In any case, a commissioned work is not a work for hire, unless it
is a “work prepared by an employee within the scope of her
employment.”

Al Balmer
Sun City, AZ


#14

I wrote something on this earlier - I think it bears looking deeper.
I’m not a lawyer and don’t pretend to be, but I have a pretty good
picture of how the jewelry industry works, too. What I’m saying is
about common practice - lawyers can split the hairs if they feel the
need. Copyright, trademark and patent laws all have the common
purpose of protecting the maker, but they also function a bit
differently in different industries - computers and video use EULA’s
and protection schemes to curtail piracy - jewelry cannot. Copying
Updike in print is infringement - pretending they are your words is
plagiarism. Legal ownership of a jewelry design also confers the
rights associated with it’s production and distribution.

So, you make a custom ring for somebody - one of a kind - and you
sell it to them. Implicit in that transaction is the understanding
that you did NOT sell the design, you sold the product. This makes
more sense when you get to:

In production you will have a REAL design - either a rendering or a
prototype (master, model…) from which you will make production. No
different from the first example except that now they’re not all in
one piece - this piece is the model (the “design”), and this one’s
product. You can sell product to your heart’s content, and always
retain the rights to the design, which is your property. People can
do anything they want with the product - it is theirs when they buy
it - but they cannot legally reproduce the design (and so the
product), which is yours alone. It’s important to understand that if
you HAD sold the design in the first example, your customer could
control and demand payment from you if you wanted to make it again -
it’s not discussed, but the distinction is there. They’re buying
product, not design in the legal sense. So - somebody walks into your
business and says,“I need a jewelry design and you’re the guy - make
up some renderings and I’ll pay you.” So you do, and he does. He
walks out with the design (which he owns, rights and all) and all is
hunky dory. But wait… Somebody else comes in and asks you to make a
ring, and YOU say, “You’ll have to pay me for design work.” What’s
the difference between #1 and #2? Not a thing. The first one offered
to pay you for DESIGN work, and you demanded the same thing in the
second - for design, not product. A transaction being a two-way
affair - after the rendering is done and the customer pays the
"design fee" the renderings (and the rights) are their property. The
only real difference is that some people fail to grasp this fairly
simple concept - pay for service, service for pay. And refuse to
surrender the work, usually without great problems. I.E. they get
away with it. This all becomes much more relevant when you work more
and more with stores and other designers - who owns what? My general
policy is that I keep designs that I make - and therefore don’t
explicitly charge for them. Telling people they need to give you cash
for which they get nothing in return is a risky business, IMO. Better
just to estimate the job, do the work, and let them walk out with
product. No muss, no fuss… Getting paid for making designs for other
people is an entirely different business.

http://www.donivanandmaggiora.com


#15

When I do design work it always is charged with a copyright
assignment included. Very often I am working from copyrighted 2D
images owned by rather large companies with lots of small minded
nasty lawyers. No way I could claim copy write on my 3D derivations.

Design work might not be easy but an attitude adjustment might be in
order if you think your efforts are that precious. Making the stuff
is usually requires more skill and is more time consuming.

Jeff
Demand Designs
Analog/Digital Modelling & Goldsmithing
http://www.gmavt.net/~jdemand


#16
In any case, a commissioned work is *not* a work for hire, unless
it is a "work prepared by an employee within the scope of her
employment." 

Well, that’s not exactly true either, but as I said, I have no
argument with Al, and I’m not a lawyer - so I looked it up. Fact is
fact, and I find that Al IS correct in much of what he says, and I
have been at least somewhat mislead by those who’ve guided me in the
past. The real point, though, is that once you start selling - not
just work but “designs”, that it’s another ballgame, and copyright
raises it’s head more than just churning out rings. I was sort of
dreading sifting through the copyright office website (always
curious), but as usual Wikipedia has a pretty good overview of the
topic heRe:

The fact the a contract is required by law is good to note - but
I’ll point out that in the “I’m OK, You’re OK” world of everyday
commerce and passing designs back and forth (like my building) that
may not always or even ever happen. Many of us in this world work
legally even if we don’t do the paperwork. Just as I build on my
house to code even though it’s not going to be inspected. Meaning
the law is meant for everyone, including Microsoft and Disney, but
me and a collegue may very well just say, “here’s your design.” Like
most of real life. Not saying it’s right, just that it’s often
reality.

http://www.donivanandmaggiora.com


#17
"selling someone a design" is when you assign the copyright.
However, when you design something to specifications, it's still
yours until that copyright assignment is done. 

I’m assuming that Al’s assessment is correct - as with all things
factual, there’s nothing to argue about. But the topic is important
to all artists and I would maintain the the concept is the same,
even if the language varies.

You are an artist, and you make a painting. You own that painting,
and you also own the copyright - it cannot be reproduced without
your permission.

Then you get a job at Pixar, doing paintings for movies. The
copyright for your paintings belongs to Pixar, because you are an
artist “for hire”. You are paid by Pixar to paint FOR THEM. You can
still paint your own stuff at home, but while you’re at work, they
own it. This is important - it’s even more important in engineering
and patents.

So, you’re a metalsmith - you make a piece of jewelry. Just like the
painting, you own it and also the copyright. Here is where I’m not
certain that Al really knows what he says, which is beside the point
(and no argument). If you get a job designing for Tiffany’s, the
copyright of your work belongs to Tiffany’s for the same reason -
you are a designer “for hire” - they are paying you to design for
them… Whether you are for hire or you are "assigning the copyright"
is the same - they own it.

Now, perhaps Al is correct in the language, and it is not
technically called “for hire”, though I was taught that it is. The
point is that the end result is the same, regardless of language.
When somebody pays you to make art in a certain framework, the art
and righta belong to them. Al is also correct in that if you simply
do a custom order, you don’t assign the copyright, you simply sell
the piece and you retain the copyright. That’s why it’s so important
to understand the concepts.

When you say, “I’ll make you a piece of jewelry”, then you simply do
that and they get the jewelry and you get the copyright. When you
say, “I’ll make a design and sell it to you.” then the copyright
goes with the design - else why buy it? Whether it is “for hire” (a
legal term) or “assignment of copyright” is legalese, because the
end result is the same - the law treats the copyright holder as the
artist, even if they paid for it from the actual artist.

And as another pointed out today, all of this is “the default” laws

  • anything can be changed by mutual agreements and contracts. You
    can work for Pixar and retain the rights if they agree to that.

And that is (the original question) why charging for design work is
a slippery slope. “I paid for the design work, so where’s my
design?” Here’s the piece, but where’s my design? I paid for
it…Better, IMO, to just say, “I’ll make you a piece, and this
is what it will cost.”

And I think much of this confusion comes from some people not
understanding in a real way that every work has a construct behind
it that is called, “The design”, even if it may just seem like a
piece of jewelry. Most people can just chug along making stuff -
it’s when a shop owner comes and asks you to make a line and you
say, “I’m going to charge you for design work” that all of this
becomes most important.

http://www.donivanandmaggiora.com


#18
But the people I deal with have ethics, too.....

The customer I am dealing with also seems to have a good sense of
ethics, so far so good. While I want to protect myself legally, I’m
not deluding myself about the likelihood of my having the resources
to chase down a customer who breaches a contract. I simply could not
afford to do it. So, I plan to keep it relatively relaxed, but I do
plan to have written contract that spells out the basics. I don’t
wish to grant her the rights to my designs, since she would then
legally be able to go elsewhere for the manufacture of the pieces,
and I want her to keep coming back. I think the contract will
specify that I will design pieces to be sold exclusively by her for
an agreed upon period of time, after which I may choose to produce
and sell them myself. I will state that I retain the exclusive right
to reproduce the design for her to resell, and I will be given credit
as the designer and creator. In essence, I retain copyright and sell
her the product so there is no confusion, and I grant her exclusivity
for a period of time to keep her happy and coming back to me. If
she’s agreeable, I’m sure we’ll be able to negotiate on the time
frame, and other details.

Very interesting thread, and one I will probably keep referring to
for a while.

Lisa W


#19
if you sell someone an orange, you don't get to keep the money AND
the orange. If you sell someone a design, they bought the design,
it is theirs. 

With all due respect, John, this isn’t even true of oranges, if this
was your own original variety of orange we’re talking about. Plant
patents are enforceable, and are aggressively pursued by the big
seed and biotech companies. Selling someone a piece of jewelry (or
an orange) of your own original design doesn’t give them the right
to copy it and sell the copies (or clone it and sell the clones).
Does it happen? Sure. Is it going to be worth going after them?
Maybe not. But you automatically have a copyright for any original
work of art you come up with, which you can choose to sell or not,
together with or separately from the piece itself. The same
principle applies to DVDs - buying a copy of a movie isn’t all you
need to do to set up a theater, or a video store - if you wanted to
show it for pay or sell copies of it, you’d need to get a license
from the producer.

Not getting called on something is different from what happens if
they take you to court. They paid you for a design, they will win.
There are roaming jewelry designers selling renderings to the bigs
- when you buy it, you own it, rights and all. Agreements can
always be made to the contrary, but failing that - if the customer
in question is charged for a design, she paid for a design, she
gets one, and it is her property. 

If the copyright was conveyed along with the physical object, that
would be true. But that would be a separate issue from designing
something unique, even with some input from a client, and selling
them the finished jewel. By default, lacking an assignment of
copyright, they wouldn’t have the right to copy and sell it. If you
haven’t signed a contract that assures them of exclusivity, you
would have every right to make and sell more of these items. A
client might claim that this was their original idea, but ideas are
not protected by copyright law - only the concrete expression of an
idea. I suppose, depending on how one charges for ones services,
that a client could get the impression that the copyright was being
sold to them along with the “design”. But one can certainly charge
separately for the design work necessary to make an item while being
clear that one isn’t selling the copyright.

The designer selling renderings to a manufacturer is in a different
situation. In that case, the design is being sold, not a single
example. The clear intent of both parties would be for the
manufacturer to produce and sell the products, and the copyright
would be sold along with the rendering. But the designer can put
his/her own flat-rate price on it, or license a certain number of
copies in return for a percentage of sales - the copyright, not the
drawing itself, would be what was at issue.

I know some people are all ego about "their designs" and charge
for design but keep the renders when the deal goes south, but that
doesn't make it legal. 

Unless the deal was for the renderings and the copyright, that
sounds perfectly legal to me, even if it doesn’t go south. You are
certainly free to throw in your copyrights along with your original
designs for no extra money, but those who don’t want to do that
aren’t necessarily egoists - they may just have a higher estimation
of what a copyright is worth.

Cash in exchange for goods and/or services is the basis of any
economy. 

Nowadays we pay out dollars by the hundreds of billions in exchange
for nothing but a hearty handshake and a winning smile…

Andrew Werby
www.computersculpture.com


#20
With all due respect, John, this isn't even true of oranges, if
this was your own original variety of orange we're talking about.
Plant patents are enforceable, 

Well, Andrew knows this - his discussion is very useful and goes far
to illustrate the complexities that arise when you talk about
selling designs, or even charging for them. These are issues that
every artist needs to at least have a framework of understanding.

The patent on the orange variety represents “the design”. The orange
in the store represents “the product”. When you sell the product,
you don’t sell the design - when you sell the design, you sell
everything. Patents, and designs, are bought and sold every day. And
if someone charged you for the patent and you didn’t get a patent
you likely wouldn’t stand for it.

And I would like to thank Al Balmer for bringing the details of
work-for-hire to light. It’s true that designing jewelry free-lance
doesn’t really qualify (though working at Cartier does). The thing
to understand is that the jewelry industry mostly behaves as though
it does because it’s the best way to act.

Last week we had merry renk sitting in the chair (one of the
pioneers of the art-jewelry movement in the 50’s) Then the owner of
Velvet DaVinci popped in with some work, and right then a new
referral buzzed the door wanting their designs cast - all the while
the phone’s ringing and the polishing room is buzzing. We’re not
making a fixed product in the garage, we are a freight train. Andrew
is aware of a referral I sent to him - to do design work on a piece
of art with a pre-existing copyright. How does all this work?

Part of this whole picture is that we are professionals - I.E. we
are not retail sheep. If you told me that you were selling me a
design (charging for = selling) you’d better not try foisting off
some souvenier design with the guts jerked out of it. In my world, a
design is the basis for production, not a frameable facsimile.

The way that we accomplish all of this - 35 times a week, every
week, is through goodwill, mutual experience and ~the concept~ of
work-for-hire. “I paid for it, therfore I own it.” The reply being
"Of course". I didn’t ask you to make up a design so you could
practice your drawing skills and make a car payment, I did it to
manufacture the product. And we don’t, and don’t need to, use
lawyers or contracts or contact the IRS or the copyright office
because it is our private business (we are doing nothing wrong), and
we have an understanding. That’s what professionals do.

There comes a time - a joint venture as the topic of this thread
being one - when agreements DO need to be formalized, but when Rob
(a real person) comes in and says “We need this model made” we don’t
need it explained to us, we just get to work.

http://www.donivanandmaggiora.com