Noting that there is substantial legal experience in the roosts, I
have a question.
Would it be within the spirit and/or purpose of the law to reproduce
an article if the original is then destroyed?
Exampe: A client brings in a silver charm that she wants reproduced
for a gold bracelet. The manufacturer doesn’t want to get into gold
production currently.
This works in the software field.
Red,
Any chance the manufacturer would give you permission to make a
single reproduction? If the holder of the copyright gives permission,
you are legally in the clear. Perhaps if you are very clear about
what you are doing – includign the fact that the original will be
destroyed – he will be willing to grant you one-time permission to
copy his design.
Without that permission, you are legally in the wrong if you
reproduce the design. The law gives the holder of the copyright
absolute control over that design. He can make it in silver, make it
in gold, give you permission to make it in gold, or hold the design
and refuse to ever make it again. (Think “limited edition”) So if the
manufacturer refuses to make the piece in gold, and refuses you
permission to make the piece in gold, from a legal standpoint,
you’re stuck.
In software, I believe the right to copy is granted by the copyright
holder, making it a practical consideration on the part of the
manufacturer, rather than a provision of the copyright law. Although
it may also fall under the “Fair Use” clause in the law, which I
don’t believe would apply here. The Fair Use clause was originally
intended to permit reproduction for scholarly purposes and to allow
criticism of works. It’s been applied to music and the like, but I
think it would be an enormous stretch to apply it to jewelry design.
For more on Fair Use, try this Website:
Instantly Transactable. You’d have to consult
an attorney to be sure, but I would expect that most would say that
copying another’s design in the jewelry field – however noble the
purpose – is well outside the bounds of the Fair Use clause.
In practice, others may wish to comment about the ethicality of
breaking the law in this instance. I will note that the likelihood of
the copyright holder coming after you for reproducing a single piece
in gold instead of silver is pretty remote. Not only is the
copyright holder unlikely to learn about a single piece, but even if
he did, there is normally little financial incentive to sue over a
single piece.
I would say, however, that the best and most ethical course of
action – as well as the only legal one – would be to seek the
manufacturer’s blessing on your efforts – possibly even paying a
small licensing fee or something? If he doesn’t want to make the
piece, perhaps you won’t find it that difficult to receive permission
for you to do so to keep HIS customer happy!
Suzanne
Any chance the manufacturer would give you permission to make a single reproduction?
This is a different discussion than I wanted to persue.
The law gives the holder of the copyright absolute control over that design.
Not to be too silly, but if I buy a Mickey Mouse charm and decide to
enhance it with a mustache, does this put me in the wrong? Are you
suggesting that if I were to goldplate the item without permission I
would be in the wrong?
In practice, others may wish to comment about the ethicality of breaking the law in this instance.
I don’t think that I was suggesting breaking the law. I was
suggesting that when one purchases a copy, one is entitled to the
full use and enjoyment of one copy. I am not suggesting that a
single copy entitles one to more than the single copy but I am
suggesting that the artist is granting rights to a single copy of
his intellectual property.
Bruce D. Holmgrain
JA Certified Master Bench Jeweler
http://www.goldwerx.com
I’m not a copyright lawyer, but the subject fascinates me and I’ve
done quite a lot of reading on the issue.
Many of the difficulties of copyright lie in the fact that there are
enormous grey areas. While the owner of the copyrights in a design
hold- unless they’ve disposed of them- the rights to make copies of
that design, in practice there are some exceptions, and large areas
into which the law does not venture.
If one has an item, one generally has the right to modify that
particular item. (There are some artistic integrity laws around, but
they have more to do with originals and one-of-a-kind items, and
have not yet been thoroughly integrated into intellectual property
laws. They’re irrelevant to a mass-produced item, anyway.) One
probably has the right to sell that modified item- except if one,
say, did something risque with Mickey Mouse one might very well have
a lawsuit if one tried to sell or display it, in practice.
If I bought a charm and re-cast it in gold instead of silver, then
destroyed the original, I think I would probably be within my
rights. If I asked someone else to do it I’d think that would be an
infringement. BUT- and this is important- since copyright exists NOT
so the artists has control over her designs(as many think) but so
the artist has the option to try to make money from her designs
(which enables her to continue to produce original work), and since
making one copy of a purchased commercial charm in a material in
which it is not available and then destroying the purchased
original, has absolutely NO impact upon the revenues of the owner of
the copyright on the charm, it is beyond belief that the copyright
holders would choose to waste their money pursuing a lawsuit where
they would get absolutely nothing even if they won. So I’d say it
falls into the vast grey area in which it is probably technically an
infringement but pragmatically (and even ethically if one destroys
the original) OK.
Intellectual property law is seldom a matter of absolutes and clear
lines. It’s very rough-and-ready. For example, all of us who
videotape TV shows and save them are technically breaking the law.
It’s only legally OK if one tapes, watches the show at a different
time, then destroys the data. And even though i know this, it has no
impact on my tape archive… I don’t believe there has ever
been a case where a private individual was prosecuted for archiving
a favorite show- mostly because the law is designed to protect the
copyright holder’s ability to profit, and such archiving does not
affect that.
So if it were me, I’d have a qualm or two, but probably make the
gold version, destroy the original silver, and figure it’s pretty
much OK. And I’m generally quite protective of people’s copyrights,
since I hope others will be of mine!
This isn’t legal advice, just the opinions of a long-time copyright
buff.
-Amanda Fisher
Amanda, I respect your study of the issue, and your opinion, but
believe it depends upon whose copyright you are discussing. When I
told the tale of trying to get Disney’s permission to do just what
you are saying is “probably OK,” I said that that particular
Corporation is NOTORIOUS for “not having any sense of humor” about
this. They will VIGOROUSLY PURSUE any infingement of their copyright.
I guess that if I were in their position, I would do the same.
David Barzilay, Lord of the Rings
As a lawyer I can tell you that your answer is not so. When you
purchase the particular item whether a book, jewelry or tea kettle,
you cannot duplicate it for sale, gift or any form of distribution.
You can duplicate the item for your own personal use but you may not
introduce it into the marketplace. If you research a bit more you
will find that there is a concept of “creating confusion in the
marketplace.” If you were to do as you suspect is correct, reproduce
the item in another material, then you have violated the law. The
penalties for that violation are not only that you relinquish all
your profits but also the attorneys fees and costs of the action. I
can assure you that the lawyers who prosecute those claims are much
more expensive than any possible benefit from the sale of a copy. The
copyright laws are created for the artist to protect his/her tangible
expressions of his ideas. This includes the production and use of
that design in all manners. While there are exceptions for certain
educational uses, you should not copy another artists work or
reproduce it with minor variations.
On the practical side, I doubt that small scale or one off sales of
items will bring down the full wrath of law. Usually, there will be a
cease and desist letter/notice for you to stop production/duplication
of the item. If you persist or don’t agree to stop then the artist
will most likely resort to court proceedings to accomplish his
objective. If you read about the tribulations of our dearly loved
deceased George Harrison you will see that he endured several battles
with other artists over the content of several of his songs. So
beware.
MLR
Amanda- I disagree with you on this. If you design a piece of jewelry
and own the copyrights to it its yours not matter whether it is a
one-of or a mass production piece. If a jeweler takes your
copyrighted design piece and chooses to make it in another metal
that is not available from you , it is not Okay.
The ins and outs of the law may be “grey” to a certain degree, but
ethically it is clearly black and white as to what is the right
thing to do. If a jeweler comes across an item that is not made in a
particular metal by the designer/vendor all one has to do is ask
permission and sign a licensee agreement to make the one piece,
sometimes pay a small royalty for doing so.
If you do not think that copyright laws are in place for a reason I
would urge anyone interested to read about Yurman vs Prime Art , or
Rolex vs ABL (sp?). Although these cases are enormous, the outcomes
still make it quite clear that copyright infringement is not to be
taken lightly.
If someone asks a jeweler to copy a known designer’s work it doesn’t
speak highly of that person asking for it to be done. Infringing on
copyrighted goods degrades our industry.
In my town, I have been privy to a situation where a known national
designer has goods in a store and yet the very same store has
knocked him off in order to sell their customer a “cheaper version”
. I ask you, is this fair to the designer that has made his designs
marketable across the US ? If a customer wants a specific design and
will not “pay the price” then I say either find them a pre owned
whatever design they are looking for at a pre owned market price or
let them save their pennies.
Jewelers have a choice to say “no thank you” when they are asked to
make a known copyrighted designer piece. You will find that those
that say “no thank you”, build a a solid reputation and achieve a
higher level of respect as a jeweler.
The very best advice is let your conscience be your guide.
Respectfully,
Arthur Gordon
This thread has been very interesting. I’ve forgotten who initiated
this, but put yourself in the position of the maker. What would you
feel is ethically correct. I would assume that none of us is in a
position to sue for infringement, but put it on a personal level:
how would you feel if it were your piece?
In general I agree with the critiques of my statements. Please
remember that I was responding to one very particular situation:
someone wanted a mass-produced silver charm reproduced in gold. The
manufacturer wouldn’t do it. It is unlikely that the legal hassle to
license it would be worth the hundreds of dollars it would cost, to
anyone- there are times, as a copyright holder, when it’s most
cost-effective to turn a blind eye to a technical infringement.
I was not referring to any situation in which people knocked off a
designer to offer a cheaper version. That is a serious infringement.
I was not referring to any modification of a one-of-a-kind or
limited edition.
We are allowed to modify and re-sell copyrighted designs. We are
allowed to buy findings and stampings and incorporate them into our
work. This is why they are sold!
I repeat that the control a copyright gives an author over a design
is a side effect of its explicit purpose: to offer the author a
limited-term monopoly on profiting from her/his work. The profiting
is the point. Decisions in copyright cases are ALL based on the
amount of illicit profit the infringer made- even punitive damages
are a multiple of the actual damages. If there’s no monetary loss by
the holder or profit by the infringer, there’s no award.
I recommend a book called “Copyright Highway” to anyone confused by
this; understanding the history of copyright helped me to understand
why it’s the way it is, offering more protection in someways and
less in others.
-Amanda
Well, that is an interesting line of “logic”. Perhaps you could
also explain why you would destroy the original. How does that help
anybody. What happens if the customer for that copy in gold goes to
someone else and asks that it be copied for all her friends? Then it
spreads through the marketplace and is picked off by an off-shore
manufacturer and becomes known world-wide. Do you imagine the
original copier is not responsible? Do you imagine the original
designer is not harmed financially? Do you have any idea how common
this occurence is? One of my designs was copied and then copied
some more and then was in gift-catalogs and shops everywhere and what
do you suppose my reward was? And my trust in the business? Do you
think for a minute that the original was destroyed? Do you imagine
the pain? Ponder that while your great interest in the subject
continues.
Pat Hicks
While I appreciate the knowledgeable legal advice offered by others
on this subject, there is a different point of view that I think is
worth mentioning.
Many of us who are involved in this forum are artists and craftsmen.
As such, I know how I would feel if someone where to copy something I
created. I would feel robbed!
I know that Disney is a big and somewhat anonymous entity, but if we
are going to defend our copyrights, we have to respect theirs as
well. I know that there is a lot of pressure from customers to make
copies of all sorts of jewelry, and frequently it’s for the sole
purpose of getting a designer piece for less money.
I think that instead of asking “can I get away with this”, the
question should be “would I want this done to me?” I’m no angel
myself, so I hesitate to preach to anyone, but it’s worthwhile to
shoot for loftier goals.
Robert Wise
But why couldn’t they do that to the original charm anyway? That’s a
separate issue, and one that is very important. I’ve been burned by
it, too, although not to that extent. If you sell anything- or even
allow it to be photographed or seen- you risk copying. That’s just
an unfortunate fact. The only prevention is to work in secret and
hide the results- unsatisfying and not lucrative. I’m very sorry to
hear of your situation, and wonder if you’ve looked into any of the
lawsuits that have been successfully mounted against such practices?
Destroying the original, silver charm means that there are not two
copies where there were originally one. His design has not been
propagated. That is legally relevant.
Personally, IF I were assured of the integrity of the people
involved and had a cast design in silver and no desire to do it in
gold (which isn’t plausible for me, but I’m a small outfit), I
wouldn’t mind if someone else made ONE!!! copy for someone who
needed it in gold. Whether or not I had paperwork to make it all
legal would depend on how much I trusted the people involved, and
how expensive the paperwork would be to generate or vet.
Happy holidays, Amanda
I must admit I’m surprised at the disapproval here towards making a
single copy of a mass-produced and purchased item which is then
destroyed, to get it in gold when the maker has no interest in doing
it in gold. I’m especially surprised since I regularly see people
here cite the (fallacious) 10% myth- that a design is legally
original if “only” 90% is a direct copy. This IS a myth and not at
all true; there is no percentage of change that makes a copy legally
an original, even if the fact that it is a copy is undetectable
(although how this could be known or proven is a good question, if
the copy looks nothing like that original at all!).
So here are some situations I see regularly. All of these techniques
are being used by jewelers I know, and all are being used on jewelry
they sell- not commission work, and not work for friends and family.
I know the people doing these consider their pieces original…
Plastic buttons or geegaws are purchased, invested, and cast in
metal, with the results used in jewelry to be sold.
A mold is made of the metal result of #1, and the article
produced multiple times and used in jewelry to be sold.
Buttons, geegaws, or other items are purchased and used to make
imprints in PMC, which is then fired and used in jewelry to be sold.
The item is bought once and used more than once.
Buttons, geegaws, or other items are purchased and used to make a
mold, which is then used to make waxes or PMC pieces, the metal
results of which are used in jewelry to be sold.
To my mind, only #1 is even arguably OK (not legally, but in
practice and so maybe legally), and that only because an item is
purchased and used only once, and multiple iterations mean multiple
purchases. The manufacturer here is profiting from the sale of the
item each time it’s used. I’m assuming that the manufacturer has no
interest in making the piece in jewelry metals; if they did, and
people bought plastic and cast it instead, that changes things. I’ll
also note that the net result of #1 is identical to the
charm-copying that started this thread; an original purchased, a
copy made in a different material, the original (and any
intermediary steps) destroyed either intentionally or as a result of
the process meaning that there are NO additional copies floating
around.
I’ll also note that even Tim McCreight, in his PMC book, has a
project that uses technique #4 (button cufflinks). I’m not ragging
on him here- I have enormous respect for him and his wonderful work-
merely mentioning it as an indication of how prevalent this is among
PMC people- even though it’s quite clearly a blatant copyright
infringement.
Perhaps because of the amount I’m seeing the techniques above used
by reasonably successful artisans, with no thought of the copyrights
they’re violating, #1 looks reasonable to me in practice. At least
the people who own the copyright are making a profit on each
iteration of their design’s use. And since copyright is all about
paying people for the use of their designs, it doesn’t look so bad
to me. Especially not in my context…
-Amanda Fisher www.electriccelt.com ALL original designs there!
You’re logic and are specious, at best. Under your
reasoning, if a person desired to produce an article, lose money, and
cause confusion and demise of the value of a particular item, then
there is no recourse. NOT TRUE by any stretch of the imagination.
Profit is only one measure of the damages. Under your reasoning a
person who is willing to purloin a design but stupid enough to lose
money on the product is immune from suit and the holder of the
copyright is without recourse to protect his work.
As to punitive damages, there is measure is not the value of the
work or the profit and/or loss to the design holder. While those may
be factors to be considered, a more overriding basis for punitive
damages is to deter the future conduct of the violator. It is usually
based on an intentional act or recklessly negligent act, income cases
actually enumerated by statute. I have yet to see an insanity defense
to the conscious and intentional duplication of another persons
design. There is no negligence, mistake or carelessness in taking
another persons expression and imaginative manifestation of his labor
that will be a defense to the production of an item under the guise
of the customer wants it in an material, gold vs. silver and the
manufacturer/designer/artist refuses to do it.
The law allows remedies that stand on a basis of equity and statute.
Because you may be feeling the sting of your somewhat larcenous and
condemning conduct, you seek to justify it with arguments and BOOKS
that you have either misinterpreted or may not be accurate. The
condemnation of your fellow artists and the rationalization that
there really was no victim/profit are without bias in the law, ethics
or morality. If you are so certain that an artist is without
liability absent profit, then I suggest you contact the publisher of
your “BOOK” asking them to indemnify you should the design you copy
result in suit.
Perhaps the law and the majority of those who have felt the sting of
a lost expression, play, book, song or jewelry design more readily
can embrace the old adage “do unto others as you would have them do
unto you.” As an attorney I have offered my opinions without bias or
malice to any of those who may have read my message. Many times, my
effort are directed to protecting a copyright or other improper act
because the offending party refuses to do what is right. If your were
to view this topic with an eye to equity your understanding may be
enhanced. The Constitution that keeps the police from seizing your
home, property and person also provides for the promotion of the free
and protected expression of an idea for a profit or, even the
emotional satisfaction of having expressed it. That right recognized
and made a part of the Constitution of our country in recognition
this value and the possibility others may not abide by a simple
ethical standard.
The end. MLR
item 1: << … that the control a copyright gives an author over a
design is a side effect of its explicit purpose: to offer the
author a limited-term monopoly on profiting from her/his work. >>
item 2: << … not referring to any situation in which people
knocked off a designer to offer a cheaper version. That is a serious
infringement. I was not referring to any modification of a
one-of-a-kind or limited edition. >>
*item 1 refutation: there is no “side effect”, “middle effect” or
"left field effect" from having ownership of an intellectual
property. you can create for profit or pleasure, or, as many of us
have found, simply because we cannot stop ourselves from creating.
creating/designing is a lifelong companion whom we wake up with and
go to sleep with and spend all time in between in propinquity (while
creators are doing this, those who can’t create are looking for ways
to “modify” our work). as to “limited term monopoly” - 75 after the
death of the originator is ‘limited’ but not short.
*item 2 refutation: whether it’s a ‘design line’ or one-of-a-kind
’trophy piece’ an infringement is an infringement is an
infringement; degrees are of interest only on a thermostat. bottom
line people: if isn’t yours, don’t mess with it - that’s an
admission that you don’t have an original thought in your head!
people: spend less time figuring out how to justify stealing & more
time being original. ive