I was browsing ebay and often, there are used rubber molds, often
bought from estate sales, for example. In fact, I was at an estate
sale last year where they were selling a large stack of old molds for
$100 or so…Now, does buying them automatically give you the right
to use these designs or do you actually need to research and try to
get permission from an estate or the original owner/shop/designer if
possible?
Just curious,
Jeanne
Jeanne,
I own two jewelry copyrights and I was told they are in force for 70
years. If there is a copyright mark on the molds, I think you need to
research and attempt to determine if the copyright is still in force
or has expired. If the copyright is still in force, I recommend you
request permission.
Mary A.
Chief Design Officer
Jewelry for the Journey
Hello Jeanne,
I was at an estate sale last year where they were selling a large stack of old molds for $100 or so....Now, does buying them automatically give you the right to use these designs or do you actually need to research and try to get permission from an estate or the original owner/shop/designer if possible?
I have often wondered about this. For this reason, when I make a
rubber mold I write a copyright notice right on it and in many cases
have a copyright symbol on the model so that every wax bears a
copyright notice. I started doing this when I thought that there was
a chance that a contract caster might go bankrupt and the molds could
go wayward.
I would think that if you buy a mold that bears no copyright notice,
you have the right to the assumption that it is yours to use. If you
do not have that right, the seller should not be selling it. Of
course it is entirely possible that the seller is ignorant of the
issue of copyrights, as are most people.
Stephen Walker
Personally, I stick with my own work and make my own models
etc…but I was curious about the legal issues with using such molds
considering I often see them sold on Ebay. I’m not sure I’d buy them
anyway as many ‘used molds’ are worn out or become hard to use with
age.
Stephen Walker made a good point though, about marking molds with
copyrights…I may have to start doing that myself in some
way…though marking the models on mine is tricky…with filigree,
there isn’t much room to mark anything!
I actually know someone who took one of her models/molds for a clasp
abroad to see if they would mass produce it for her. She decided
against it, but it has since shown up in a somewhat well known
findings catalog, and is clearly visible in their ads in Jewelry
Artist Mag etc. Of course, a skilled manufacturer could always cast
an item and remove the markings and make a new mold…
Jeanne
Unless expressly stated otherwise you have the right to use them for
their intended purpose. If it expressly written otherwise, why are
they being sold?
Are you worried about copyright or design registration, if so ask the
seller if they have the right to sell them. It is possible that
someone else owns the copyright of the original design but it would
then be likely they actually owned the moulds as well. An example
would be if I designed an object and had someone make me a rubber
from it and then they did the casting for me the mould remains my
property even though it is kept in their workshop. if they went bust
I would be very upset with the receivers who sold my property and
could recover it from whoever bought them and the seller would have
to compensate the buyer but the buyer would have no claim whatsoever
on the moulds.
Hope this helps and doesnt add to the confusion.
Nick
Not being a lawyer take this with a few grains of salt and maybe
some tequila.
I wouldn’t expect copyright ownership to pass along with the molds
unless there is a written license.
On the other hand do we know that the molds are of copyrighted
designs? What are there, perhaps a zillion molds out there, floating
around? How many are genuinely copyrightable? Do we even know if the
seller has legal title to the molds?
I bought a batch from Ebay and Donald Duck was in there so yeah I
know its copyrighted and cannot be sold but rarely I think will
copyright be that obvious.
I cast waxes and then alter the piece to suit my needs with most
relic molds then make my own mold from the new piece
Teri
I was browsing ebay and often, there are used rubber molds, often bought from estate sales, for example. In fact, I was at an estate sale last year where they were selling a large stack of old molds for $100 or so....Now, does buying them automatically give you the right
IANAL (“I am not your lawyer”). and there are a lot of complex issues
here but there are also some probability and “business decision”
issues too. First, we’ll assume the designs in these molds are all
the work of the deceased or properly in possession of the sole heir
or sole assignee of the author/copyright owner. We could also assume
that all heirs “signed” over (or at least gave provable and plausible
permission of) rights to disposal of the molds to the seller. We can
also make a very safe bet that the executor/trix (supervised or
tutored — in the breach, the most likely case — by some non-IP
knowledgeable attorney) has no formal assignment document drawn up
that will pass with the molds.
So the estate is validly selling the molds by our assumptions. The
heirs do not want the molds nor----the presumption must be----to
exploit any copyright ownership in those designs. If they did want to
exploit that copyright ownership one would think they must do so
without selling the mold.
I believe pretty much any court will see it that way OR, assuming
the original author was someone very famous AND the heirs got
demonstrably bad attorney advice, or some such, should the court
decide the “copyright” should remain with the heirs it will also
indemnify any “good faith” buyer and subsequent user of the molds. To
“give it (the copyright) away” with the mold sale and expect to keep
it via a “legal claim” could even be fraud I would think. How much it
costs to get that court decision and who, in the end, pays for that
decision is another issue entirely.
Now, suppose we start chipping away our assumptions. Maybe the mold
owner did a surreptitious theft of Donald Duck and that mold is in
the collection—what else in their collection might be
stolen?—might it all be suspect? Even if there is no smoking gun
Donald Duck do we have any certainty that none of the designs were
stolen? What if the deceased “owner” were the last tenant of a
cooperative establishment? What if they were a casting shop owner?
Whose heirs through greed or incompetent legal advice believe they
should get whatever money they can for the molds and don’t have to
return them to their rightful (and perhaps even well documented)
owners?
What if the deceased author’s copyright rights were not specifically
allocated in the will though all other possessions were? Now it is
the state (in the USA) whose formula decides who the rightful heirs
are—though generally, except in the case of famous
author/designer’s, no one will pay any attention.
After you read this post can you ever be a “good faith” buyer of
molds?
Now to the probabilities. What is the probability that a rightful
heir will sue. Virtually zero. What is the probability that a wronged
true owner will sue? In the case of a cooperative maybe a little
higher than virtually zero, especially if the last tenant was casting
the design and faithfully sending royalty checks. Maybe even higher
in the case of a closed casting shop’s mold inventory.
What should you do?
Some suggestions.
For Ebay auctions post the question: Are the designs of these molds
all the intellectual property of the estate and are any and all
intellectual property rights to those designs being given up to the
buyer? If the answer is yes, highly probable, then you might, to be
cautious, ask the seller to list the names of any owner/authors
and/or owners by assignment. Most likely, if not flummoxed, they will
only list the deceased who’s registered copyrights you can look up at
the copyright.gov web site. If they say no to the first question
don’t bid or if you already did then request, if you wish, that Ebay
let you withdraw your bid since the seller has materially changed
what they are apparently selling. Finally, ask if they will sign an
intellectual property assignment statement for the bid winner. Print
out and file the dated pages showing the questions and answers. After
you win, fax or email them your assignment statement and have them
send it back signed with the molds or get it faxed back before you
pay.
For an estate auction, look up the deceased and possibly their
pre-deceased spouse on the copyright.gov web site. Get a proper
assignment form prepared by your IP attorney or find one on the web.
For the USA there is no official assignment form for copyrights but
you should see
http://www.copyright.gov/circs/circ12.pdf.
Take it to the auction. Make it an “In the event that I bid on and
win the purchase of molds, works, drawings, designs, or any
intellectual property…” type agreement and, in advance of bidding
(i.e., be their early to see the lots, etc.) find the executor/trix
or representing attorney and get their signature. In general you
will have no trouble with this and it will, on its face, when you
file it with the Copyright office (do this even if you found no
registrations, remember, copyright does not require registration),
provide proof of both the seller’s and your good faith. If an
apparent legitimate signature cannot be gotten you may not want to
bid or you may, if you can, pose the question to the auctioneer when
the lot comes up and then bid or not depending on the response.
Business decision time. Are the molds/designs worth any hassles,
costs, and any expected value probability of future litigation? Do
you think you can, in lieu of litigation should any issue come up,
offer and negotiate some reasonable win-win deal—say 10 percent of
your profits from any such acquired mold designs—IF the claimant
provides adequate, convincing documentation that they have a claim
outside any assignment agreement you got?
My advice if you want to buy molds. Do so with what documentation
you can get and expect that once in a great while someone will crawl
out of the woodwork. When that occurs, make some rational “win-win”
decision (even if that means you cease to do a lucrative design that
may be, say, apparently stolen) long before anything has a chance at
getting to litigation.
If you think you need specific, situational legal advice, get a
sound IP attorney—do not take whatever you hear on some discussion
forum as gospel.
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
James White covered it all pretty well, but I’ll make my advice
brief.
If you make work from second hand molds, just be prepared to cease
and desist if someone comes along and claims the copyright.
If you don’t want to see this happen with your molds, mark the molds
with a permanent pen; copyright symbol, your name and date. You do
not have to register to assert copyright protection. Tell your next
of kin what you wish them to do with your molds, or better yet, put
it in your will.