Definitely worth at least approaching the company yourself even if
you don’t want to go to the expense of lawyers. Firstly go buy a
couple of your designs and make sure you get sales receipts. Also if
you can get a digital camera and take a photo of your design in their
display cabinets. The owner of the company may have no idea one of
their employees has ripped you off. They may well be horrified and
offer you compensation. If you get enough evidence it should be no
problem getting a favourable result in court plus costs. If you
decide to get a lawyer get one that will do it for no win no cost
basis. If you do nothing about it you might find later you will
regret it. I hope you at least call the company and try to speak to
the actual owner. But like I said first get all the evidence.
Certainly Amery has concern about loss of income due to the copied
design. I think there is even more concern because the logo is there
and if the product is substandard - ya gotta’ think it might be -
then that inferiority is attached to the logo. NOT a good thing.
I think protection of the logo’s reputation is perhaps more
important then the loss of income.
What nerve! Just like those Rolex knock-offs being advertised! Let us
know what you decide to do, Amery,
Judy in Kansas, where it’s snow showers for another day and cccccold
temps too!
punitive damages are usually many times greater than actual
damages.
Of course. But she can’t change history, so for Amery, that’s
irrelevant for this instance. And while revenge may be sweet, I
didn’t get the feeling that she’s out for blood, just looking to
make things fair. Having them cease and desist, and remit any actual
damages/profits should put things right.
We can all start registering all of our designs, to guard against
the possibility of their theft, but for the more prolific designers,
that’s going to be a LOT of work.
Daniel, from a legal perspective, and I am proffering a legal
perspective regarding copyright law: a trademark or copyright is
valid from the moment of its creation - in the creators studio- but
beyond that, if it is not registered with the proper officiating
entity (the trademarks and patents offices in one’s
state,parish/county,province, and country) legal recourse is limited
to what amounts to a personal appeal to the infringing party, or a
trip to small claims court in which the copyright holder had better
have done the appropriate documentation gathering-(and it is rather
lengthy to be accepted at face value in the US anyway!) to receive
damages of the maximum allowable amount - no where near what the
potential would be considering punitive damages, profit ceasure,
court costs and legal fees recovery, mandatory admission publicity
costs and insertions in as many publications as the holder of the
valid copright sees fit to demand, and ther monetary and public
addenda that could add up to a large sum and the ruination of the
party that nfringed on that right’s businesses.etc.- One must
register his/her copyright(s) to file in a court of law in the US
and UK and many other nations as well…period.
A cheap way to "register" is to take photos when you make a piece
and put those photos in a mailing envelope.
Sorry to burst your bubble but this is not in any way a way to
register a copyright and will get you laughed out of court if you
were to try to use it as a means of claiming registration. Copyright
exists from the moment of creation whether you register it or not.
However to get more than a cease and desist order from the court you
must have registered the design with the government and paid the fees
etc. before the violation occurred.
James Binnion @James_Binnion
James Binnion Metal Arts
The first approach may be a little overkill for some but the
second comment seems a little harsh. Amery works hard and her
business is her livelihood.
Your right it does sound harsh I didn’t mean to offend Amery or her
work & it was insensitive of me not to see how upset she would be
that someone ripped her off. I was taken aback at how quickly the big
guns came out without anyone asking her what was stolen & who stole
it & how they are using it. I really think it is a judgment call &
You
don’t necessarily go after every offender who steals Your work even
if it does have Your company logo on it. I used to design & carve
models for a company in Manhattan who was regularly ripped off by
manufacturers in Korea & we just shrugged it off it wasn’t worth the
time & money to pursue it. We were too busy making money ourselves to
bother. There are some designs that are universal & so similar that
this is also something to factor into Your decision. Eli Whitney
bankrupted himself spending all his time in the courts suing people
for copyright & patent infringement of his cotton gin instead of
seeing the bigger picture & realizing he had only a small window of
time to maximize his profit on his invention before everybody ripped
it off. He never made a dime but everybody else did. If Amery is sure
it would be to her benefit financially to go after them than she
should.
A cheap way to "register" is to take photos when you make a piece
and put those photos in a mailing envelope.(sign across the flap
on the back) Then mail that envelope to yourself
Since you can file a copyright on groups of items, it makes more
sense to just file. You can download the file from the Library of
Congess.
Another point, plain and simple, is if you don’t fight it, and they
see another of your designs in the future that they like, they will
do it again…if you make an issue of it, they may think twice about
doing so…you may also get a reputation that if you are copied,
you will not sit there complacently and let it happen! It’s like a
kid in school who gets his lunch money stolen because he won’t stand
up to the bullies…they’ll keep doing it until something stops
them, either the kid himself of the administration (law).
BTW…is your logo registered? If nothing else, you can get them for
using your logo!
a trademark or copyright is valid from the moment of its creation -
in the creators studio- but beyond that, if it is not registered
with the proper officiating entity legal recourse is limited
RER, (First of all I wish you put your first name at the end of your
posts so I knew what to call you.) Anyway, I can assure you that you
do NOT, in the United States, need to have registered anything with
anyone to claim copyright. Copyright exists from the moment the piece
is created and as long as you can prove that it was made before
someone copying you (and registration is not a necessary part of
that), you can file a suit in federal court, and collect damages. If
you go to the US government’s website dealing with copyright issues
you will find that nowhere (and I mean nowhere) does it say that you
must register to claim copyright and I can assure you from personal
experience that it is not necessary. Thanks to a former partner (and
I’m not going to get into what the exact fight was but it did involve
lawyers), I have had to comb through the federal copyright laws with
a fine toothed comb. While you may feel it provides you with an
advantage to have registered the designs it really simply isn’t
necessary and ultimately won’t make an iota of difference in court
(unless it acts as a better proof of timing as to when you made the
piece). I urge you to go back and read the entire federal copyright
laws which are easily available on line by searching under “federal
copyright laws” but here is one paragraph from those laws that you
should read. Please note the last line of the paragraph:
(a) Registration Permissive. - At any time during the subsistence of
the first term of copyright in any published or unpublished work in
which the copyright was secured before January 1, 1978, and during
the subsistence of any copyright secured on or after that date, the
owner of copyright or of any exclusive right in the work may obtain
registration of the copyright claim by delivering to the Copyright
Office the deposit specified by this section, together with the
application and fee specified by sections 409 and 708. Such
registration is not a condition of copyright protection.
So you can register it, but it really doesn’t matter if you do.
You’ve still got legal copyright protection fully defensible in court
regardless of registration.
Daniel R. Spirer, G.G.
Daniel R. Spirer Jewelers, LLC
1780 Massachusetts Ave.
Cambridge, MA 02140
Eli Whitney bankrupted himself spending all his time in the courts
suing people for copyright & patent infringement
Also Annie Oakley, though in her case it was libel and a little more
understandable. I have to agree to some degree. I might call the
company and point out that they are going down the wrong road -
maybe. Expecially if my work wasn’t especially original to begin
with…
I think you need to assess your true damages. Beyond the emotional.
What has this event cost you and what is it likely to continue to
cost you, long term?
If the production run was relatively small and the resultant dollar
figure sold by the company that copied you is not huge, you will have
great trouble finding a lawyer who will take the case on contingency.
Think of contingency cases as a bit of a gamble, if the prize(for the
attorney) is lucrative he/she just might take on the case. There will
be many man hours involved and probably out of pocket expenses so the
lawyer will make an assessment of the strength of the case and the
possible awarded damages. He will base his decision on that. The
carrot has to be big enough.
If you retain an attorney you pay him something upfront and then pay
more as the case progresses. This will not be small change. You will
invest significant money way before the case gets to court and even
then can you really be assured of not only winning but also
collecting at least enough to offset what you’re invested?
Someone mentioned an agency that helps artists. I’m unfamiliar with
them but most likely they will want to assess the case much the same
way as a contingency attorney. If the case is solid and they’ll do it
pro bono then why the heck not try it?
If you go the criminal route and obtain a cease and desist you would
still need litigation to try to recover monetary damages. The perp
may entertain a settlement offer if they feel they are vulnerable.
But maybe not.
This knock-offer may just be gambling that you or other artisans he
may copy don’t have the resources to fight. Only you can determine if
the hassle and cost are worth it.
I’m not dissuading you from any course of action. I’m also not an
attorney but I’ve kicked around courts enough to know that it
doesn’t work as portrayed on TV. Get your ducks in a row, get legal
advice, make a rational decision based on your best long term
interests.
Amery: I’m really sorry to hear about this happening. I can only
imagine that it’s a huge PITA to have to deal with. Wow, I can’t
believe they were bold enough to copy the design WITH your logo on
it. --That baffles me. I wonder what would happen if somebody tried
to copy one of their designs-whoever they are.
Everyone else: Trademarking w/r/t logo, etc. is one thing, sure.
With regards to copyright protection (with teeth) and one’s actual
design though, what I’m getting out of all of this is, in order to
protect each and every “original design” to this extent, each
individual design should have its own copyright registration?
I really do know the answer to that, but I guess what I’m wondering
is, how many of you actually do this? Regularly? I’ve had some of
these VA registration forms printed out and sitting in my inbox for a
while, but it’s just another task that needs to be undertaken at some
point-that is, if I care enough about a particular individual design
to begin with. When I first printed out the forms a few years ago, I
don’t recall seeing a “Jewelry Design” category. Now it seems that
there is indeed one on there.
This would be a very interesting survey topic.
This particular link is specific to copyrighting and photography,
but I think a lot of it is applicable to us. Check it out. I think I
may be changing my practices.
In a nut shell, that is the truth. I couldn’t care a fig who steals
my designs. I have designed thousands of different pieces of
jewellery in the course of my career and the few times that I found
out my designs were cribbed gave me a “warm fuzzy” feeling. Ha ha–
Like, “So I am on the right path!!”.
And I have said it before on this forum and I’ll say it again;
anybody is welcome to copy my designs. Take them. Make millions out
of them. Don’t even bother to credit me. I don’t care.
And if you ask me, I will show you how I made it. No problem.
For my latest tutorial, check out Making St Maarten Pendant It is one
of my best selling concepts and all the variations of it make me
good money.
Go ahead, make money out of it-- and you’ll make my day
Absolutely; another thing is that if this company has a
"Designer-reputation" and advertises heavily to support it’s brand
then the management will probably understand how damaging it could
be to thier reputation to not be perceived as “origial” to the
public and press.
Yes that is what I’ve been saying; however you can save some of the
fees, by registering groups if you have product tat looks like a
line you can register it in groups but it needs to be kind of
similar and it needs some kind of group name, I usually say
something like the" spring 2008 charm collection’, and I try not to
put more than 8 pieces in it.
Copyright exists from the moment of creation whether you register
it or not. However to get more than a cease and desist order from
the court you must have registered the design with the government
and paid the fees etc. before the violation occurred.
You are correct that “the moment of creation” is the moment that
copyright exists, but the US Government’s copyright site at www.copyright.gov tells a different tale of when you must register
and what you may get for a violation. Perhaps that has changed since
you last researched it?
The two items that seem to be in debate in this topic, taken
directly from that site:
Before an infringement suit may be filed in court, registration is
necessary for works of U.S. origin. If registration is made within 3
months after publication of the work or prior to an infringement of
the work, statutory damages and attorney’s fees will be available to
the copyright owner in court actions. Otherwise, only an award of
actual damages and profits is available to the copyright owner.
Actual damages and profits could be a bit more than a cease and
desist order.
