Also, my opinion of the legal question (though I am NOT a
lawyer,) is that the 200 designs definitely are your legal
property. YOU owned the copyright when you created to work, unless
you had signed a 'work for hire' agreement with your parents.
I don't usually disagree with much you say, but I believe in
this case that if she was actually employed by her parents (i.e.
receiving a paycheck from them for her work) that the designs very
definitely belong to her parents.
Unfortunately in this specific case we can’t get to the for-sure
correct answer without having answers to more questions which is why
both of the above have big qualifiers written into them.
Unfortunately I also suspect that many readers will fail to note
those qualifiers and draw the WRONG general conclusions. While the
first statement suggesting the original poster (OP) “owned the
copyright when they created the work…” is clearly backwards, 180
degrees out of sync with the law, it’s conclusion still may be, but
most likely is not, correctbut we don’t have the facts to KNOW
that and, in fact, the “facts” may only be determinable in court.
Some general rules:
The law writes sound rules—then codifies exceptions.
There are always exceptions to the exceptions.
Copyright and patent law are two separate bodies of law which are
administratively under two different agencies, the US Patent and
Trademark Office and the Copyright Office of the Library of Congress
respectively. These two bodies of law work differently so a principle
applied to one may not be applicable to the other—in fact it may be
the exact opposite. (More on patents in a moment.)
With a PDF reader you can see the entire Copyright law at
http://www.copyright.gov/title17/circ92.pdf (1.4 MB or get smaller
chunks at Copyright Law of the United States | U.S. Copyright Office). To quote the first part
of Section 201 “Ownership of copyright (a) Initial
Ownership.=97Copyright in a work protected under this title vests
initially in the author or authors of the work. The authors of a
joint work are coowner of copyright in the work.”
That’s the “sound rule” so on the face of it the creator owns the
copyright—but wait, there’s more!
Continuing to quote from exactly where the above quote left off:
“(b) Works Made for Hire.=97In the case of a work made for hire, the
employer or other person for whom the work was prepared is considered
the author for purposes of this title,”
That’s the first of the “codified exceptions” so, if, in fact, the
physical creator was working “for hire” (defined in Section 101 “A
‘work made for hire’ is–(1) a work prepared by an employee within
the scope of his or her employment;…”) as an employee then the
BUSINESS owns the copyright—but wait, there’s more!!!
Continuing again to quote from Section 201 just where we left off
before: “and, unless the parties have expressly agreed otherwise in a
written instrument signed by them, owns all of the rights comprised
in the copyright.”
Bummer, an oral agreement will not suffice to convey any copyright
rights so by the statements made by the OP the OP does not have any
copyright rights which means they don’t even have the right to make
derivative works of their own creations—but wait, there’s more!
While an oral agreement cannot affect copyright rights it certainly
can establish a contractual obligation to pay commissions or
royalties to the benefit of the OP. The catch, of course, is
enforcing an oral agreement. If there are witnesses other than the
involved parties that would be better for the OP but they can always
first try persuasion then maybe arbitration then maybe a law suit
then maybe arbitration (then, of course, maybe back to court if a
judgement against the BUSINESS isn’t paid…)—but wait, there’s
We don’t know what the OP meant by “200 designs” or parties seeking
out pieces of her work specifically because of her piece’s “look.” If
that is 200 pieces or 20,000 pieces replicated from 200 designs where
essentially all have the OP’s distinctive “signature” “look” and
customers do, in fact know the “look” comes from her rather than the
BUSINESS then she may actually own her own trademark and could create
additional (but not duplicate or “derivative”) pieces with her
“signature” “look.” Many state laws would, under the principle that
you cannot deprive a person of their earning power, likely support
such additional pieces. But, all that said, this is clearly a
situation where the services of an EXPERIENCED IP attorney will be
NECESSARY BEFORE proceeding along those lines----and the OP
will have to be willing to go to court if necessary. Without that
willingness “right” makes no difference at all.
When an inventor invents something while working for a corporation
and while being paid for his time to do it, the corporation owns
the patent, not the inventor.
This is USUALLY correct for patents but NOT due to the LAW. The LAW
explicitly ONLY grants patents to the actual inventors as required
by the US Constitution. Most companies therefore require that anyone
working for them in a product or process creative capacity, by
contract, pre-assign any patents they get (for inventions related to
their company work) to the company. (A number of states have explicit
laws that allow inventors working outside the company and on
inventions not related to the company to own such patents. And there
is some case law on the subject also.) However, even in the absence
of such a pre-assignment agreement the company on whose time and/or
equipment and/or with whose materials are used may still have some
“shop rights” (and perhaps more) in such non-pre-assigned
patents/inventions even though the inventor will retain the patent
rights. “Shop rights” are generally a state law specific concept and
vary from state to state but at the very least likely would permit
the company the right to make and/or use the invention at least
internally without interference from, or compensation to, the
That being said, however, the reality is that, legally, if no
copyrights were applied for it doesn't really matter if she wants
to just go back and duplicate the designs again.
This shows a fundamental misunderstanding of Copyright law.
Copyrights need NOT be “applied” for----they exist WITHOUT
registration the instant a work is in a fixed form. They can be
registered and that registration does give the owner more rights and
power under the law and even more rights and power if the
registration is done within 3 months of “publication” (whatever that
means in the creation/sale of jewelry works).
It would be highly unlikely that her parents would pursue her
legally anyway if she simply started making all of the designs
again from scratch.
Probably true. In fact the costs of litigation on such a matter, or
just starting to explore the process, likely would exceed any
possible recovery within the first few hours of planning to go to
court. Undoubtedly that cost/benefit tradeoff is the major reason
most jewelry does not have it’s copyright REGISTERED even though
copyright rights still exist and could be greater with registration.
I suspect the concept that without true copyright, designs can be
replicated, is going to ruffle a few feathers on Orchid, but I have
recently had extensive legal advice presented to me on this very
topic and unless copyrights were applied for there isn't a whole
lot anyone can do about her decision to replicate her own designs.
There is no such concept as “true copyright,” only copyright and
registered copyright both of which are real, true, whatever you want
but fully legitimate. The real catch is that without registration you
cannot get statutory damages or attorney’s fees on any infringement
occurring before the registration unless that infringement --and
actual registration – was within 3 months of “publication” (see
However I agree with you and the other respondents that the
problem here is not really copyright or the designs but how to
resolve the more general issues with her parents.
Likely true—and probably messier than any dealings with copyright
or trademark law. But again there are too many unknowns to give much
specific useful advice. For example was the father (and/or mother)
always this way or is it recent and what caused/causes it? Are there
other family owners besides the parents? What is the businesses legal
structure? I would think the OP should definitely talk to an IP
attorney about the copyright/trademark issues above and more then
make her best decision on how to proceed on those issues either
consistent with or inconsistent with “family mending” actions but
trying to keep the “legal” and “family” as separate as possible.
James E. White
Inventor, Marketer, and Author of “Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)” Info Sites: www.willitsell.com www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com