Open Hearts is suing over copyright infringement

Jewelry Discussion
61

I am a bit surprised by negative reaction to Open Heart design. I
actually think that design is quite good. It has dynamism, lines are
expressive, and it has meaning behind it.

The problem with design is technical and not artistic. It is
dimensionally unstable, so when they pull waxes, the shape gets
distorted. In designs like hers, this is deadly, because so much
depends on correct relationships between metal masses and open
spaces.

In evaluating any design, it is important to keep personal dislikes
separate from objective judgement. I do not like Marc Chagall, I do
not like 90% of Picasso, but I do recognize them as been great
artists.

In my opinion, Open Heart design has artistic merit.

Leonid Surpin

62

Leonard,

One popular example is a cop knocking on your door. If you open
the door and start conversing with the cop ( I am simplifying ),
the cop would have the right to enter your house. Leaving the door
open and allowing cop to see inside constitutes a waiver. You must
step outside of your house and close the door behind you to
affirmatively preserve you right.

This statement is not true at all. Permission must be asked by the
officer and consent must be given by the owner. Leaving the door
open so the officer can view the inside is not consent nor is it a
waiver.

If consent is not given, and the officer needs access, he must draw
up a search warrant and show probable cause to gain entry. A judge
reviews the warrant to determine if probable cause exists for entry.
Entry is necessary if 1) it is believed a crime took place on the
premises, 2) the instruments of the crime or evidence of the crime is
contained therein and/or 3) the person sought is the subject of an
arrest warrant. I am simplifying here and giving 3 of several reasons
why a warrant is issued.

Francesca Anatra

63 
etc. and re-post them without so much as a second thought...

Interesting side story - I’m sure some others saw it… On Good
Morning America (National wake-me-up news magazine show…) they had
a family that had posted a family portrait pic among others on their
family website. No t sure if it was for Christmas… So, a friend of
theirs was traveling and in the Czech republic there, on the side of
a wall, was the family portrait blown up twenty feet across as the
cheery, happy, healthy family in a grocery store ad. The ad agency
had just pulled it off the website and used it. No lawsuit, they just
thought it was kind of creepy, and the store jerked the ad, saying
they didn’t know, it was the agency that did the work… Smaller
and smaller world all the time…

64

I had a real WTF moment the first time I saw the TV commercial for
this Open Heart jewelry, with Jane Seymour painting her little red
squiggle. But she is, in fact, a decent artist. I regularly do the
Malibu Art Show, at which she has been a frequent “featured”
exhibitor. So, whether you like the squiggle or not, she does have
some credibility as an artist.

Allan

65

It seems to me that at least a substantial part of some arguments
here involves the concept of ‘open hearts’ as a validation of Jane
Seymour herself. Thing is though, is THAT the crucial question? I
don’t believe so. The background story, complete with pathos and
spirit, of how the line came into being doesn’t have a bearing on
whether the design ITSELF is original or previously existed in the
public domain. The design seeks protection, the story is marketing.

Each of us is going to have their own take on it, rightly so. Was an
exact duplicate made and marketed with deceivingly similar wording?
That would be one thing. Pretty clear knocking-off.

Is there a trademark on Open Hearts as a brand? That would be
another thing. Still knocking-off. Although a google returned
131,000,000 results. She must get around.

Is it the concept (dealing with the world with an openheart) itself
that is at the heart(oops) of it? Something else entirely. Can you
copyright a sentiment? Tougher sell if you ask me.

Do we, as jewelry peers, have the right/ability to comment/criticize
what goes on in our industry? I sure hope so. It would be
interesting to see just what the offending pieces looked like
compared to the Seymour pieces.

66

Richard,

Basically I agree with you. Originators of a unique design are
entitled to copyright. Copiers are liable to be sued for
infringement.

Where I am uncomfortable is when access to the justice system
becomes the property of folks with money and nobody else. That is
where a strict loyalty to the capitalist ethos interferes with
justice. A rich man can steal a design from a poor man and get away
with it. Not so the reverse case. I don’t really know the details of
this case with the “open hearts” - as I mentioned, I haven’t even
seen them. But I think you might profitably examine your pairing of
democracy with capitalism. It is an easy assumption to make because
it is the status quo which prevails here and now, but it is not the
only possible arrangement.

When one set of values (capitalist) blocks the values of the other
(democracy) a choice point is reached. Which value set is more
essential to a sane human society? Which should take a higher
precedence? One is simply a set of rules around commerce, admittedly
an important human activity. The other is based on ethical and moral
relations between living humans, concerned with protecting their
"rights", for example, right to access and benefit from an impartial
justice system. By contrast, we are not guaranteed in the
constitution (or anywhere else) rights to a profit from our
commercial activities. If we make a shoddy product or steal a design
we may expect to fail in that regard. Our political and legal system
should not sort the injured parties into two classes - those who can
afford legal rights and those who cannot do so. That’s where I
dismiss your notion of “rules of the game” taking precedence over
what I see as our higher principles. If we do believe in those
principles then even our capitalists need to subject themselves to
them rather than to construct a sub-set of “rules” with which to
throw the game.

I don’t expect we’ll come close to a perfect world this week or any
time soon, but I wouldn’t either simply shrug and accept the rules
of today’s game as if they were the best we can hope for. Let’s hear
a little more grumbling about the present botch-up we live with.
There is room for improvement. No need to get stuck in that
eyes-straight- ahead, head-down. strictly business stance.

Thanks for your patience.
Marty Hykin

67 
This statement is not true at all. Permission must be asked by the
officer and consent must be given by the owner. Leaving the door
open so the officer can view the inside is not consent nor is it a
waiver.

I am not going to get mired in legal argument. If I gave a bad
example, than present a better one. The point still remains. Rights
must be claimed, or some lawyers may try to show that you waved it.

Leonid Surpin

68 
So, whether you like the squiggle or not, she does have some
credibility as an artist.

This word “squiggle” bothers me, but if we must… Good squiggle is
hard to come by and should not be taken lightly. There were a recent
post about engraving nature scenes and animals. Well, engraving is
all about making squiggles. Make it the right way and it is a
masterpiece, make it badly and it is a mess.

Leonid Surpin

69

Please read the mission statement for Orchid

  Ganoksin is dedicated to serve the needs of the
  world's jewelers. It is our mission to educate, improve working
  conditions and facilitate sharing between goldsmiths globally.
  Ganoksin continues improving access to for
  productivity, safety, skills and education of all jewelers,
  professionals and hobbyists.

I can understand if people want to share info on how copyrights work
and the protection they provide.

I feel the discussion about Jane Seymour and the Open Heart design
has gone far beyond that.

There are a lot of people on this forum who have not had supportive
people behind them when they attempted to pursue something creative.
Just the basic fact of the risk taken to put yourself and your work
out there is the eye of the public might have some of you respect
what she has done.

Although there has been a lot of info on how the process works there
has been a profound lack of understanding of the right that the
company that produces the piece has to uphold their copyright. There
has been judgment and criticism of the design and Jane Seymour that I
feel is totally inappropriate and very few of you would appreciate
anyone treating you like that. Perhaps because she is a celebrity
you feel she deserves this.

There are some societies that seem to be founded on judgment, blame,
and criticism, and it is defended as free speech. There are
societies that would consider it rude to say some of what has been
said. I am ashamed of some of the smallness and lack of respect
exhibited on this forum toward Jane Seymour on this topic.

Do we, as jewelry peers, have the right/ability to
comment/criticize what goes on in our industry? I sure hope so. It
would be interesting to see just what the offending pieces looked
like compared to the Seymour pieces.

This is what really irritated me the most. Has this really been
anything about “what goes on in our industry”?

James Binnion said

What is clear from all this is most folks do not have a clue about
copyrights. A copyright does not say whether you have a unique
design but that you came up with it, on your own. There is no value
judgement or test of uniqueness required. Two identical designs
could conceivably both have a valid copyright as long as both
designers could show that they did not copy the other. There are
millions of heart designs, each with a copyright that exists from
the moment of creation. And if you design something that has
copyright it is up to you to prove in court that the infringing
party copied you work and did not come up with it on their own. This
is exactly what Jane Seymour is doing and what David Yurman does.
Your aesthetic judgement of the design or whether a torque or heart
was done in antiquity has nothing to do with it. Copyright is about
protecting YOUR design and as long as you did not directly copy
someone else's exact design it is copyrightable.

Now fiqure out how much said did not relate to the copyright issues
and was just a bunch of crap.

Richard Hart G.G.
Denver, Co.

70

Steve,

For good or ill, the Open Heart has become a widely recognized
symbol, and is popular enough to warrant copyright protection. It
is also unique enough that such protection is practical. I say it
should be protected and preserved, if for no other reason than to
ensure that its meaning and its message is not corrupted by copycat
exploiters.

While the Open heart design may be widely recognized and because
some feel it is popular, does that merit copyright protection? And if
so, would that mean if a piece is not popular copyright protection is
not warranted?

Some people may not like my designs and that leaves me concerned.
wink!

All the best,
j

J Collier
Metalsmith

71

  1. My question about how many of you have downloaded music was not a
    rhetorical one. It goes straight to the point of this discussion in
    some ways. I would really like to hear from you all about this. The
    complete lack of response was telling in and of itself.

  2. Just the basic fact of the risk taken to put yourself and your
    work out there is the eye of the public might have some of you
    respect what she has done.

Well I did this starting when I was 19 years old (and that was a very
long time ago) and to this day I put myself and my work out in the
eye of the public and while I may not make the kind of money she
does, I do quite well for myself. But I did it on my own without the
support of a large jewelry firm loaded with lawyers. So I’m not sure
I would have any more respect for her. In fact I have more respect
for David Yurman because at least he’s always been a jeweler and
worked his own way up the ladder. I know she and her company have
the right to sue. I don’t dispute her right to sue. I just don’t like
that she’s doing it. And I don’t like that the only reason she’s
able to do it is because she is backed by huge bucks.

  1. and facilitate sharing between goldsmiths globally

I am sharing. I’m sharing my feelings about copyright suits in our
business.

Daniel R. Spirer, G.G.
Daniel R. Spirer Jewelers, LLC

72 
There are some societies that seem to be founded on judgment,
blame, and criticism, and it is defended as free speech. There are
societies that would consider it rude to say some of what has been
said. I am ashamed of some of the smallness and lack of respect
exhibited on this forum toward Jane Seymour on this topic.

I must agree with you here. The rude comments in this thread are
totally uncalled for.

James Binnion
James Binnion Metal Arts

73 
My question about how many of you have downloaded music was not a
rhetorical one. It goes straight to the point of this discussion
in some ways. I would really like to hear from you all about this.
The complete lack of response was telling in and of itself.

Telling of what? I don’t download music, and don’t plan to. Cheats
the artists out of their money. I want to be paid for my work, and
expect to pay other artists for theirs.

Just was too busy to reply then! [grin]

Beth Wicker
Three Cats and a Dog Design Studio

http://www.bethwicker.etsy.com
http://bethwicker.ganoksin.com/blogs/

74 
Just the basic fact of the risk taken to put yourself and your work
out there is the eye of the public might have some of you respect
what she has done.

Here on Orchid there are various “groups” - there are pros of all
kinds, there are sudents and hobbyists, and others. There are quite a
few who have climbed up to where they are, and are saying at the top
of their voices, “I am KING of the mountain - look at what I’ve
attained!!!” If they would but look up, they would see the Himalayas
looming ahead, but they don’t look up. And much of the work is
naive…

75

I am going to be 55 come October 17th, I have never downloaded nor
pirated music, nor have I sent a text message. i prefer to have an
actual “copy” of my music. I do not care to download digitally…
what do I have some dots and dashes on my hard drive? And for
texting, give me eye to eye contact… I have a pay as you go phone
and love it when it doesn’t ring. My son’s refer to me as a Luddite
(sp?), in good humor, and I don’t mind. peace.

76 
While the Open heart design may be widely recognized and because
some feel it is popular, does that merit copyright protection? And
if so, would that mean if a piece is not popular copyright
protection is not warranted? Some people may not like my designs and
that leaves me concerned. wink!

A fair enough question. I was simply referring to economic
practicality. To me, the one-off piece in my wife’s jewelry box is
not worth filing a copyright, simply because it will never generate
enough revenue to pay for the filing, and certainly would not pay for
an infringement suit. If we had run off a thousand numbered copies,
that might be another matter, whether anybody liked it or not.

I mentioned popularity because that is a motive for pirating
original material. I mean, who would want to copy something that
nobody else wants? Unpopular original works are cheap to copyright,
because you never have to take them to court. Recognizability can
also be a motive to copy, but more importantly, it is a factor that
makes enforcing a copyright easier.

Can you copyright your “ugly ducklings?” Absolutely. Should you? I
have no idea, that is up to you. Is it economically feasible to
enforce your copyright on every piece you make? I doubt it, but you
may choose to do so as a matter of principle, and that is fine, too.

Oh, yes, and you need a richly dressed friend or two to hang around
your shop. Any time someone comes in and fails to appreciate one of
your pieces, have the friend sniff haughtily, sneer, and mutter
something to the effect of, “Peasant!” Then people will buy anything
you have to sell, because they want to show off their refined
artistic sensibilities. (This advice is guaranteed to be worth every
penny you paid for it!)

Best regards,
Steve
Gems Evermore

77

Just the basic fact of the risk taken to put yourself and your work
out there is the eye of the public might have some of you respect
what she has done.

I put myself and my work out in the eye of the public and while I
may not make the kind of money she does, I do quite well for
myself. But I did it on my own without the support of a large
jewelry firm loaded with lawyers. So I'm not sure I would have any
more respect for her. In fact I have more respect for David Yurman
because at least he's always been a jeweler and worked his own way
up the ladder."

Speculation that “she” is making money aside,I think I am trying to
get across the concept of being generous enough to celebrate the
creative process as expressed by Yurman and Seymour (that we all
share) in spite of the judgment or criticism we may have of design or
our perspective of the way they choose to do business, which might be
none of our business either way.

This part:

In fact I have more respect for David Yurman because at least he's
always been a jeweler and worked his own way up the ladder.

I do not know what this has to do with someone pursuing their desire
to share something they make. Both Yurman and Seymour are doing the
same thing. I do not think the criteria for having respect is that
one worked his way up the ladder. Some of the members of this forum
are designers and some are metalsmith’s, Both deserve respect for the
effort they put forth to pursue their vision.

Non-sequiter is a term I like. It is if "A’ is true and “B” is true
"C’ is true only because “A” and “B” are true. Her design sucks, she
has money, she does not deserve a copyright. That seems to be some of
the logic of some of the posts. Regardless of the fact that the Open
Heart design has a copyright, because she did not climb the latter,
or the design is not adequate to the taste of some, that she’s a
celebrity, that she has lawyers is sufficient for some to question
her right to copyright and market her design.

The copyright process has a criteria to be met. Esthetic’s is not
involved.

It is a bureaucratic(?) process, not democratic. If you read the
definition in the dictionary, there is little to discuss. We all have
the same right to copyright our work. Opinion has nothing to do the
process.

So I wonder, did anyone get a better understanding of the copyright
process, why it is done, how it is done. Did anyone who thought the
copyright process was unfair or inequitable change their mind? Did
anyone who was happy with how and why is was done now have an issue
with the how or why.

Richard Hart G.G.
Denver, Co.

78

Again folks are not understanding copyright. You don’t have to “get”
a copyright, at least in US law the copyright exists from the moment
of creation. There is no need to decide if the work is “worthy” of a
copyright. All original works of authorship (writing, film, song,
jewelry, or squiggle etc.) have copyright invested in them by the
act of creation whether they be good, bad or mediocre. If you chose
to you can register your copyright on a design with the USPTO. The
act of registration provides you with some additional options when
and if you decide to sue someone but registration is not required to
have legal protection of your copyright. If and how you chose to
protect your copyright is of course a matter for you to assess with
factors like your financial resources and what damage is being done
by the copying etc.

James Binnion
James Binnion Metal Arts

79

Marty,

When one set of values (capitalist) blocks the values of the other
(democracy) a choice point is reached. Which value set is more
essential to a sane human society? Which should take a higher
precedence? One is simply a set of rules around commerce,
admittedly an important human activity.

If capitalism is defined as “the rules around commerce,” then the
civilcourts are a part of capitalism, and it makes sense that its
access is based on capitalistic principles. It is sorting out
economic matters and is not a “justice system.” The criminal justice
system is a “justice system” and relates to the democratic system.
This is why every criminal defendant is entitled to defense counsel,
regardless of their ability to pay for it. Apples and oranges.

Jamie