The mystery appears to have been solved, looking at the “new
members” post today. In my opinion, I would say that at most, the
jewellery appears to have been inspired by, and not copied. The
person in question has come up with arange of unique jewellery, which
just happens to be cast twigs. They are not alike in my opinion.
Helen
UK
micky -
...In case you do have legal grounds to sue him, there are legal organizations...
since the '70’s passage of copyright laws, there has sprung up an
entire legal genre to enforce and protect the intellectual property
of its creator - be it ‘touch-able’, ‘hear-able’ or ‘see-able’ - here
are selected short excerpts of the law, both our copyright laws in
America and international copyright law: some of the covered property:
“-… literary, artistic and scientific works…”
"-…“all other rights resulting from intellectual activity in the
…literary or artistic fields.”
period of copyright protection;
of extreme importance is this line straight from the law;
‘…copyright begins from the moment when the work has been created,
or, under some national laws, when it has been expressed in a
tangible form.’
i’ve already been successful at defending my basic design against
the world’s largest wholesale supplier - it turned out to be a very
stress-less endeavor with a successful conclusion - so…
good luck -
ive
Like Richard, I took a casting class in 1972 in which we spent the third day gathering and gating up bugs and twigs. My Dad had been doing it for decades before then
A few have posted on this thread, suggesting that it may be just
chance that the said person happens to be making similar jewellery.
But the OP informed us that the said person actually really liked
Mickey’s line of jewellery, and asked to have some pieces to sell.
The jewellery was then returned or no longer sold in the gallery (I
can’t remember which), and Mickey was later shocked to discover that
said person was selling IDENTICAL jewellery, with opals cut by the
same cutter as the original jewellery. Such circumstances are not
pure chance that another person is casting twigs in a similar way.
The description of the circumstances screams direct rip-off of
someone else’s designs. But like you say, it’s a matter of proving
it, and that is the difficult and expensive part.
Helen
UK
Excellent post by David Phelps! As many posters have pointed out,
there are very very few things under the sun that are original,
which is the legal requirement for a copyright (defined as an
original work that is captured in a tangible medium). Works in the
public domain or that are derivative of existing work are not
original, which is a legal term of art.
Copyright arises immediately upon capturing an original work in a
tangible medium. Registering a copyright with the Library of
Congress, which has jurisdiction in the USA over copyrights, only
goes toward proving damages, not the validity of the copyright. If a
valid copyright is registered, and you prove its validity and
infringement, then you are entitled to statutory damages. If it is
not registered, and you prove its validity and infringement, then
you have to prove lost sales caused by the infringer. Much more
difficult.
That being said, you are much more likely to lose a defamation suit
against you than win a copyright infringement case based upon these
facts. False claims or statements made in writing (which includes
the internet) are libel, which is even worse than mere defamation.
Take David’s advice: make excellent work that is difficult to copy,
keep making new stuff, so that anyone who does copy it is yesterday’s
news.
Emie Stewart
said person was selling IDENTICAL jewellery, with opals cut by the same cutter as the original jewellery.
That’s kind of what I was driving at. If Micky uses 24 gauge 22K
bezel wire and Mr. X used 22 gauge 18K, will a judge and/or jury
consider them to be IDENTICAL?
In a case of copyright infringement, maybe, and maybe not. I don’t
think so though, especially given that both pieces were made by two
different people using different individually cut stones that are not
anywhere near identical, even though they may be very similar and
were fashioned by the same cutter.
In the case of a libel suit, words have meanings. Identical does not
mean indistinguishable. If Micky uses the word “identical” in a post
she makes to publicly call him out by name, and Mr. X decides to go
after her for libel, she must prove to a non-jewelry judge or jury
that her pieces and Mr. X’s pieces are truly identical (her word, not
anyone else’s). 24 gauge and 22 gauge bezels in different metals may
be indistinguishable by most people, but in strict legal parlance the
use of two different metals and gauges means that the pieces are not
identical.
Case closed. Pay the man.
Dave Phelps
In response to
My name is Sam Shaw, about whom this post is intended. While I agree
with some of what Mickey says here, my perspective and conclusions
are quite different. Pretty much anyone who has ever made anything
has felt the way Mickey does way to some degree.
Here are some criteria that I use when evaluating work, specifically
about if a person has “ownership” of a certain style, technique or
aesthetic.
Perhaps most important is the consistency of voice. Is the work
consistently recognizable within a body of work? Is there a theme
that unifies the collection so it presents itself as a cohesive,
integrated, thoughtful and unified whole? Are the characteristics and
style clearly the work of that hand and mind?
Another criteria is commitment and depth of involvement. Is there a
range of examples within the aesthetic that demonstrates that the
artist is truly interested enough to keep coming back, and back, and
back again to see what else can be squeezed out of this idea. The
work is not just a passing experiment or dabble, but a term measured
in years or significant output to show that the artist has a passion,
involvement, and desire to pursue an idea further.
Another criteria would be originality. Is the idea, technique, or
imagery singular, unique, and never seen before? This is a tough one
for artists, as there is, as we can all agree, very little which is
truly new. It is remarkably exciting when an artist does develop a
completely original idea, of which there are many examples.
Mastery would be another criteria. Does the artist demonstrate a
skill in the media where the desired result is not obscured by lack
of facility? Is the intent clear and appear effortless and seamless.
Development of the idea, from spark, through incubation, early
exploration, inspired attempts, and fulfillment is another mark of
owning an idea. Is the journey personal, and have references and
resonance within ones life. Are an artists interests, aesthetics and
actions related such that the ideas contained seem natural, and the
conclusions reached are obvious and honest?
I think you and I can honestly claim most of the above criteria,
with the exception of originality of idea. In my view, artists,
designers and jewelers have incorporated twigs into jewelry and
precious objects for millennia, and abundantly within our craft
community as well. You are absolutely not the first to use cast or
fabricated twigs in jewelry. But in my perspective you do have
ownership, as do I, and the numerous others who share our aesthetic.
I invite anyone to view my collection on my site, shawjewelry dot
com. Today, one can purchase pre cast twigs on line ready for
production. Twigs in jewelry are prevalent and ancient.
I understand that you believe that I imitated you. I know in my
heart that my path was my own, and that I came to similar conclusions
as you. For instance I cast twigs and buds in college in 1975, and
made jewelry from them. Other work of mine is very much centered
around found objects from the natural world. I was aware of what you
were making, but my journey and development was my own.
I believe there is room enough for all of us. Put ten of your pieces
next to ten of mine and I suspect anyone would be able to determine
which are yours and which are mine. We each have a distinctive voice
within this shared aesthetic.
I was one of the early adapters of using beachstones back in the
eighties. Certainly not the first to use beachstones, but I made them
my own. My response when I saw others using beachstones after I had
established my collection was to hug them because I knew we found
beauty in the same things. I bought their work and continue to buy
and sell beachstone jewelry made by others. I also buy and sell
jewelry with twig motifs. There is a lot available.
I take Mickeys concerns very seriously. When she sent me her pieces,
I was deep into beachstones, and it was numerous years later that I
adopted twigs. I do not have a recollection of what she sent me in
the late 1990’s. I did have a twig cross over cuff with pointed ends
that was in my gallery for years that I believed I had purchased from
Mickey. But she says I did not buy any of her jewelry, so perhaps it
was anothers.
I have been giving this a lot of thought since receiving this post.
Trying to recreate the past. I believe it is fair to say that
Mickey’s work was in my sub-conscious. Upon reflection and self
examination, I can honestly and sincerely say that I came to my own
conclusions. I did not look at Mickeys work. I never, no not once,
did I ever look at her website or knowingly see any of her work. I
hope you can believe me Mickey. And I hope we can both continue to
make work that is meaningful and truthful.
Unfortunately, I’m afraid it happens a lot more than we know. I had a
friend, now deceased, who was a local jewelry artist. She had
designed and sold a ring to someone, who later took it to another
local jewelry store…artisan based, but a bigger business, possibly
for resizing? I don’t remember all the details, except that somehow,
it ended up coming back to the original artist at some point after
that, and she actually discovered the remains of mold rubber in the
crevices of the ring. The other jewelery store had literally made a
mold of her original design and were apparently selling copies as
their own! She took legal action, and I believe, won. Unfortunately,
she died of cancer a couple of years back, so I cannot confirm all
the details of the story, but unfortunately, just because we are all
’fellow artisans’, we cannot assume everyone will extend equal
respect to us, our art, or our copyrights, even from within the
community.
Jeanne
Having read all the comments about copywrite infringement and stolen
designs, I have to agree with those who point out the futility of
seeking legal advice and pursing the matter,as the use of twigs does
seem to be in the public domain, and unless a mould is made of the
original and then copied, one really does not have a case.
As did Richard Hart, I looked at a number of jewelry sites such as
Esty etc., and as he noted, use of twigs in the manner that Micky
uses them is common.
Therefore, it would be almost impossible to claim origninality.
Also, As David Phelps points out, the way to avoid having one’s work
copied is to develop ones skill to the point where copying would be
very difficult.
I believe that the reason Micky is so hurt by all this is that the
person who has the gallery rejected her work, after having shown it
for some time, stating that it did not sell. Yet he has developed
his own line of twig jewelry, which bears a remakable resemblance to
that of Micky’s, and obviously it is selling very very well. Of
course this causes pain and anger.
But as several have pointed out, hurtful as this is, there is
nothing for Micky to do, but to use her talents and skills to take
her work in another direction, and difficult as it may be, to let
the entire matter drop.
Alma
My understanding of copyright is that the protection is not likely to
yield any monetary reimbursement in a court of law. More than likely,
an offending person will simply be told to “cease and desist,” and
maybe get fined. On the other hand, if you register a trademark and
then your work is copied, you are entitled to all the money a person
has made with your designs. If a foreign company begins to
manufacture your design, one would probably have to attack them
through the courts where the items are being manufactured. That can
get expensive, but could be worth it. The point being: it’s trademark
that gets you the money.
There was a painter set up next to me at the first art show I ever
(over 40 years ago) did that painted beautiful underwater scenes. He
bragged to me of how he was sued by Jacques Cousteau for copyright
infringement. The fine was $2,000, but apparently, according to the
painter, he only had to change 10 things from the original photo to
be in compliance with copyright law, so he airbrushed out the
highlights of the water on the dolphin’s back–10 highlights. He then
sold the piece for $4,000. Apparently his work is still selling at
street fairs and galleries, and he’s been in court several times but
always comes out ahead. I suspect there are jewelers that are no
better. By the way, he got an award for his piece at that show.
– Mary Whittle
Copperplate Etchings, Enamels and Silver Jewelry
A trademark shows the source of goods, not the actual goods
themselves. It is a completely different type of intellectual
property than copyright. Trademark infringement involves passing off
copies as the real thing: for example, fake Gucci purses that are
labeled and look exactly like real Gucci purses. Merely copying
someone else’s work but labeling it as your own is not trademark
infringement. Also, merely copying someone else’s work is not
necessarily copyright infringement unless that copied work meets the
legal requirements necessary for a copyright, as have been
identified previously on this forum.
Emie Stewart
people -
i was staggered by the posts from artists who reportedly earn from
the jewelry business who lack the basic about protecting
the products they create. before i discovered orchid i checked out
several web sites with ‘making jewelry’ - one of those sites had a
forum going about copying someone else’s design. the answers/opinions
the forum members posted ran the gamut from hilarious to ridiculous:
“i heard that you could copy a design if you give credit to the
designer.” “you can copy and sell someone’s design as long as you
don’t sell it for more than the cost of the materials.”
“i heard that if you copy only 90% of a design or use different
stones or metal, you don’t have to give credit to the original
designer.” “well, i’ve heard that you can copy anyone’s design if
you donate the piece.” by the time i was laughing so hard i couldn’t
read the screen, i left the forum, went to a copyright site and
copied the most simple explanation i could find. back at the forum
site i stated my posting was just to prevent anyone from running into
copyright law problems.
i have no idea how my copyright law post was received - the next time
i tried to sign on the site i read: “THIS SITE IS NO LONGER ACCEPTING
E-MAILS FROM YOUR ADDRESS.” i was crushed…
people - read the law, avoid embarrassment -
ive
i was staggered by the posts from artists who reportedly earn from the jewelry business who lack the basic about protecting the products they create.
Amen to that!
It isn’t just about the law. This is really about reputation. Even
if it actually goes to a court of law, each party has to consider how
this is going to make them look and what will be the emotional toll.
This is not a clear cut case by any means. Any rush to judgement
would be foolish. In the court of public opinion we are all judge and
jury, but is it really any of our business? It must be horrible to be
personally involved.
Stephen Walker
Wow!! Those designs by Sam Shaw sure do remind me of Micky’s pieces!
Sam
i was staggered by the posts from artists who reportedly earn from the jewelry business who lack the basic about protecting the products they create.
You ask the question?
is it any of our business?
I think it is.
The experience and skills of folk who write in to this forum range
from beginners, to the most experienced old hands.
Therefore it is beholden for us all to prevent the less experienced
from being taken advantage of.
We were all beginners once.
The well being of our craft image is at stake.
Shades of the old guild system maybe?
who post here
Bethe B.
Know the feeling all too well. My hard work and creative ideas
enabled the man who hired me to gain some prominence. My son
"dragged him, (his words) into even a wider exposure. Many unpaid
hours were spent with the promise of a joint venture, initial
paperwork created with business consultation. After three years we
were fired, all our efforts and ideas claimed under threat of law
suits, and we were maligned as “trying to steal his business!”
Not all in the jewelry business are honest, have integrity, or above
stealing and claiming others work as their own. IMHO. Hopefully you
will regain your strength and ability. I am on your side.
Hugs,
Terrie
Teresa Masters
www.metalsmith.co
Therefore it is beholden for us all to prevent the less experienced from being taken advantage of.
I agree. But the inexperienced are just as likely to make mistakes
by copying protected work in their naivete as they are to screw up
the protection of their own genuinely original work. In this case
specifically it would take any of us quite a lot of research to
figure out who was doing what with cast twigs and when. Take that a
step further and try to wrestle with the issue of how original or
distinctive is the work and what have the original authors done to
claim their ownership through copyright notice or trademark of style.
If there were many millions of dollars in sales at stake and the two
parties were willing to take it to court, their lawyers and legal
research staff might spend hundreds of hours in preparing the
evidence and arguments. None of US have time for that, but we still
form our opinions, mainly based on our prejudices and impressions.
If anyone learns anything from watching this play out I would hope
it would be how not to let this happen to you. We all do work that is
very much derivative of those who have gone before us. It is
important to distinguish between what is public domain and what is
not. It is also important to be sensitive to the people you have been
directly in contact with and what has transacted between you. If
Micky and Sam had never met or done business, this would be a very
different story. I am tempted to pick apart the statements that both
of them have made, but why should I? Maybe to criticize their
mistakes, but this forum is a poor venue for justice and it really
isn’t any of my business.
Copyright is a very serious issue in my own work. Since I work in
the “Celtic” style there are many who would assume that anything I do
is so traditional that copyright is impossible. But this is not true
at all. I have had my work copied many times and done a pretty good
job of defending it. I have gone as far as filing suite in Federal
Court to defend my copyrights. Usually a well written “cease and
desist” letter in a firm but diplomatic style does the trick. But it
isn’t just about law and rights. There is a constant balancing act
between the cost and aggravation it would take to pursue every Ebay
knock-off and not covering all my original designs with the sort of
paranoid “mine! mine! mine!” copyright notices that would make me
look like a crank and a wack-job, against the fact that if you don’t
defend your copyrights you basically forfeit them. I have had friends
copy my designs and been in the delicate position of having to
negotiate with them about how that situation can be resolved without
causing undo embarrassment to them and their grandparents, who are
dear friends of the family. Unlikely as that seems, it has happened
to me twice, with different people. I have also seen things that
others did that I adapted to my own work. So far nobody has accused
me of plagiarism to my face and sometimes I have even asked
permission to use certain motifs or concepts.
There is no simple answer to any of this other than to be honest and
keep your cool. And it doesn’t hurt to learn the difference between
the actual law and art school psycho-babble. It is very easy to get
emotional if you are accused of doing wrong or if you are thinking
someone else has stolen your designs. Keeping your dignity and
protecting your reputation is as important as anything. You might
have to make a trade-off and settle for less than having it all your
own way.
Stephen Walker
I have watched this thread with some interest. As some of you know
not only my work but the name of my trademarked company has been at
one time or another “borrowed”. Yeah…I did get that trademark.
It feels horrible to see what looks to be your look, or your work
with someone else’s name on it. Pretty shocking really. I had never
seen Micky’s branch and twig work before today. When someone
mentioned Sam’s name, I went to look at his stuff. Then at Micky’s.
Yep. They look similar. Very similar.
My curiosity piqued I kept looking. The list seemed endless. These
people below all seem to make some version of branch or twig
jewelry. Their versions look pretty darn good…some very original,
many fairly similar.
k brunini
The chains of Love
ch mackellar
Randi Chervitz
Sylva & Cie
Chibi Jewels
Kenneth Jay Lane
Lucky Brand
Dweck Diamonds
Judith Jack
Gorjana
Aurelie Biderman
Catherine Weitzman
Nina Designs
Dana Melnick
Cathy Waterman
Jane Pope
Olive Bungalow
The real Housewives of OC
and…
Me
Yep, me. Mostly because I used to be a landscaper and love plants. I
have collected branch specimens for jewelry since the mid 70’s. Since
1990 I have made twig and branch jewelry of some type for sale. Some
of it is in my Ganoksin Gallery. I have also seen some very nice
branch jewelry that others made over as many years as I have been
making jewelry and before. I have seen some very nice crown rings
over the years as well. I made my first crown ring in 1990. It was
inspired. It was also published nationally in 1992…along with
crown rings by others. Boy was I surprised to see other people had
the exact same brilliant idea as mine, but then I was still wet
behind the ears.
I had gotten my idea from a stained glass window while sitting half
asleep at a wedding in Massachusetts. I made a ton off of those
things. Published in InStyle Magazine under “What the Stars Wear”.
LOL…That was hilarious. Of course around that time I also had to
give a C&S letter to a very high end store who pasted up a billboard
of my work with someone else’s name on it. When I say, “my work”, I
mean the “artist” had taken molds of my actual work and then put a
slight twist to hers. Not twisted enough, my cast in thumbprint
hadn’t been removed from the inside of the rings. The billboard came
down. Funny what kind of impression a good lawyer makes.
It stings a lot when your hard thought out idea looks to have been
copied. Worse when you know the would-be plagiarist personally. That
really sucks.
Best advice: either sue or move on. Lawyers usually make more in a
lawsuit than you do and after all is said and done, there is little
if any satisfaction in the whole experience.
Its like eating glass…but I say make good work, invent something
new and fresh that you are ALSO known for. You work speaks for
itself. You will shine.
-Lisa (About to embark on a remodel. What am I crazy? Don’t answer
that…) Topanga, CA USA
I am personally very tired of this discussion about the copyright.
The most intelligent thing I have read was someone quoting Mr.
Spirer. Unfortunately, I do not find this e-mail anymore, but I
agree completelywith him. All my professional life, I have been
against copyright for jewellery because it is one big heap of the
nonsense. As Mr. Spirer said, hehad seen perhaps 12 original designs
in his lifetime. I did not keep track, but I can think of 5 or 6 or
perhaps 7 - and here I include the pieces which are in fact not the
wearable ones. All the rest has been done before countless times. One
the biggest jokes around is the contemporary jewellery of which the
designs can be found back in antiquity or in the middle ages.
Copyright is not about protecting your work; it is about the
historical amnesia. It is about society in the distress where, due
to macroeconomic circumstances, people are not longer able to
prosper. Copyright does not ensure civilisation, it is a step in the
war of all against all, with rationality going out the door. Look at
the reasoning of Mr. [snip] for an example. He thinks his designs are
original. He has, he writes, threatened friends of his family
because of it. Well, Mr. [snip], go to the Bretagne or, indeed, to
Ireland and you will find your beloved original designs that you are
so eager to protect on every corner of the street.
Jacques Pinaud
I beg to differ, any judge will accept a secured piece of mail from
the US postal service, their date mark as a sign of ownership. It
has been done with writing, art, photographs, and would work with
photos of jewelry. When we do not have finances to protect ourselves,
we have to take measures that are out of the box. This has been
called a poor man’s copywrite since before my uncle recommended it
when I was 18, I am 64, and feel confident in our legal system that
they would honor our photo’s, our attempt to protect ourselves, and
the proof is in the envelope.
I beg to differ, any judge will accept a secured piece of mail from the US postal service, their date mark as a sign of ownership.
Sorry this is just not true.
From the US Copyright office.
"I've heard about a "poor man's copyright." What is it? The
practice of sending a copy of your own work to yourself is
sometimes called a "poor man's copyright." There is no provision
in the copyright law regarding any such type of protection, and
it is not a substitute for registration."
Go to U.S. Copyright Office | U.S. Copyright Office for more
James Binnion
James Binnion Metal Arts