Stolen designs

Jewelry Discussion
21

Ditto. Sort of reminds me of that song “Your so vain I bet this song
is about you”! I guess I am the only one who ever opened up a book or
visited museums or Galleries. We are all borne with a sub-conscience
and believe me it kicks in when ever we are designing or creating and
all of those past images of works where ever they come from come out
in our work some how.

Most designs are just modifications of past works. How do you
copyright a circle, square, triangle, line, etc? Yes you get a lawyer
and pay out the nose to protect an item that eventually if it sells
will be copied in another country out of the reach of your, I got my
retainer up front lawyers. Then what? How much is a design really
worth?

Who can say they never made ring or a bangle? These are basic circle
shapes, if we take copyright laws and creative ingenuity seriously
then a new form needs to come forward for these most basic of our
designs. I am almost positive someone has a copyright on a circle out
there. There is a need for copyright laws and judicious application of
such laws. Maybe before one sues someone they should take a look at
themselves and see if they really have a claim to that work. Twisted
wire and hammers go back a few thousand years.

Thank you for your wise comments.
sergio@hypsercon.com

22

Ditto. Sort of reminds me of that song “Your so vain I bet this song
is about you”! I guess I am the only one who ever opened up a book or
visited museums or Galleries. We are all borne with a sub-conscience
and believe me it kicks in when ever we are designing or creating and
all of those past images of works where ever they come from come out
in our work some how.

Most designs are just modifications of past works. How do you
copyright a circle, square, triangle, line, etc? Yes you get a lawyer
and pay out the nose to protect an item that eventually if it sells
will be copied in another country out of the reach of your, I got my
retainer up front lawyers. Then what? How much is a design really
worth?

Who can say they never made ring or a bangle? These are basic circle
shapes, if we take copyright laws and creative ingenuity seriously
then a new form needs to come forward for these most basic of our
designs. I am almost positive someone has a copyright on a circle out
there. There is a need for copyright laws and judicious application of
such laws. Maybe before one sues someone they should take a look at
themselves and see if they really have a claim to that work. Twisted
wire and hammers go back a few thousand years.

Thank you for your wise comments.
sergio@hypsercon.com

23

Everybody copies a little. Not necessarily an entire piece, just
elements of something we like to fit a particular application.

24

My understanding is that if there is sufficient differance between
the copy and the original then the copyright has not been infringed
upon. I have also been told the for jewelry the differance can be as
little as 5% or 10%. However, I do agree that original designs of
ones own are better.

Michael / QuestFox

25

A fellow jeweler in the town I live in had a customer come into her
store last year. The sales clerks quickly recognized the customer was
wearing my friends earrings and complements them. In the exchange
that followed, it became obvious she is not purchase these one-of-a
kind cast earrings from the artist. While the customer was trying on
other earrings, the clerk took one aside to show the artist. Someone
had made a mold of the original, blotting out her signature, of
course. The proof? Her fingerprints where in the original casting
(part of her style) and they were copied without loss of detail. When
the customer was asked where she purchased the copies, the best they
could get was the State the store was located in. Of course, she left
the store without making a purchase. When another store owner
recognized them down the road, she took them off and put them in her
purse.

I imagine she had no idea what she had bought. My friend was upset
to know that someone was making direct casts of her work and mass
marketing it. Not flattery at all.

26

Great to hear someone with a balance thinking. You are right and
that you have brought up an important point that history of different
civilisations do contribute to jewellery design. How original can you get? Thank you.

27

It used to be that way, but the copyright laws have been changed
recently, so that if the copy resembles the original, even though
changed somewhat, there is a basis for a suit. At least that’s the
way it is in print media, making artists much more wary of what they
use for reference and how they use it.

Janet Kofoed

28

Unless we have time and money to spend on lawyers to protect our
designs, there is little to do. My own 3 steps to limit stolen designs:

1- Be always ahead of competition by continuous innovation in
creativity and design. Make sure you customers can rely on you (and
only you) for new designs.

2- Control production and manufacturing as much as you can. Do all
or most of your work in-house. Sub-contract to honest and reliable
people.

3- Control pricing of your designs and production: For high volume
production keep prices low enough to discourage others to copy, for
one of a kind ask as much as you can.

Fady Sawaya
@Fady_Sawaya

29

Sergio, I believe you are right about the subconscious and basic
design. I read somewhere, can’t recall where, that the ancients used a
design principle called the golden mean and it continues right up to
the present even though we don’t consciously try to do it. The golden
mean is where the most pleasing art is divided at about 62% of its
dimension. Many of the great paintings of history just naturally lines
up with this, so that for instance in portraits one or the other eye
lines up at about 62% of the width of the painting. It works with 3D
design too, not always but enough times to make a person start to
wonder about Jungs idea of the collective unconscious. Geo.

30 
 My understanding is that if there is sufficient differance between
the copy and the original then the copyright has not been infringed
upon.  I have also been told the for jewelry the differance can be
as little as 5% or 10%.  However, I do agree that original designs
of ones own are better.

Check out this months JC-K. You will find that a judge recently found
that even though a piece has been changed that elusive “10%” there can
still be liability. Again the problem isn’t in the copying, it’s in
the intent. If two people were making the same design at the same
time, that’s one thing. But, to create something in response to high
demand and popularity of a design that someone else has recieved
protection for and has worked to bring to market is stealing.

Larry Seiger

31

I think a distinction should be drawn between those who are inspired
by the works of others (I’m thinking we can all plead guilty to that)
and those who simply attempt to duplicate the designs of others.
Southwestern jewelry is a case in point. Most of it draws from a
common pool, in terms of traditional designs, symbolism, techniques,
and materials. And it is good, to the degree that each artisan is
doing his personal take on the design and/or technique. Nobody says
"oh, a squash blossom necklace, how derivative." The same is, to some
degree, true of what we all do. We are all inspired by the works of
those we admire, and we all draw from a finite pool of techniques and
materials. We have all learned from those who have come before. The
tragedy comes in when some soulless moneygrubber takes a design and
has it mass-produced, without inspiration and with the cheapest
possible materials.

Lee Einer

32

I agree, a bench jeweler (or anyone else) should stand up and protest
if their employer is engaged in unethical conduct. I also agree that
with the passing of time other retail jewelers will become aware of
the unethical conduct. The question is, what then?

I was on vacation in Southwest Arizona last week, and I stopped in
Bisbee to admire the work of the local artists and look for rough
rock. Proprietors of two different businesses informed me of a
well-known jeweler in the area who was/is allegedly engaging in all
sorts of villainy, including selling chinese turquoise as “Bisbee
Blue,” stamping estate jewelry with his hallmark, and promoting blue
calcite as “blue ice,” which he is cabbing and selling as a hot new
gemstone (the stuff has a hardness of 3, you could probably scratch it
with your fingernail). So the area jewelers know about the unethical
conduct, but the question is, what regulatory oversight is there to
prevent or abate the unethical conduct? The jeweler in question
appeared to be doing well. Without some form of oversight, those who
deceive the public will continue to prosper.

My 2 cents.
Lee Einer

33

Dear All, I’ve been “lurking” on this issue of stolen designs so why
not throw in two cents worth of considerations which may not have
been fully addressed ? I wonder how many of you have ever used a
commercially available wax pattern? I would venture to say that most
of us have. Did it ever occur to you that these are almost always
patterns which have been “stolen”. The point is that if you have used
this resource this makes you an accessory and therefore you are
dealing in stolen goods. Some of you may say, yes I have used
commercial patterns, but I almost always modify them so that they
then become my original design…phooey! If you buy a stolen object
and then conceal its’ identity through modification you are still an
accessory. I was recently quoted in connection with this issue
wherein I had made a statement that dishonesty had become a real
threat to the industry. Actually, I’m afraid that my comments were
not directed at those who “steal” designs. Design in jewelry is never
untainted by outside influences…none of us lives in a vacuum. The
best designs are very often those which have been “stolen” from
nature and those designs that bear no close resemblance to any
obvious natural object may still fall into accord with nature in that
they are based on the logical relationships to geometry, symmetry and
function. A key consideration in this whole equation is that of
evolution. Design follows paths of evolution and while some threads
of basic design follow long paths of development others fall by the
wayside just like animals have for the past two billion years. Nearly
every musical composer has borrowed from predecessors and, while
those ideas may not have been original, nonetheless they have been
injected with the style of the borrower and thus the idea evolves!
Personally, I frequently find it very difficult to differentiate
between the compositions of J.S. Bach and Teleman yet each derived
actual and perceived income from his own compositions. In the long
run, copyright is a matter of protecting the financial interests of
large corporations. I certain don’t fault the motion picture industry
for wanting to protect intellectual property rights…a modern
film may cost one hundred million dollars to produce. On the other
hand, Rolex watches have become a thing of the past in terms of their
presence in the market as originals…they are completely
inundated by knock-offs. Those of you who are determined to pursue
legal sanctions in order to protect your "original " designs are
going to be warmly welcomed by the lawyers who are drooling to take
your money…(while it lasts) The old saying that warns gamblers,
“The house always wins” applies here as well. Don Quixote would have
been warmly welcomed by the casinos!!! Ron at Mills Gem, Los
Osos, CA

34

One reason why people steal designs (besides being artistically
bankrupt) is they know they can get away with it. Hardly anyone ever
pursues copyright infringement, especially small crafters – even in
such obvious cases where the fingerprints in the original have been
cast into the duplicates! If this is ever going to change, crafters
are going to have to stand up for themselves, I’m afraid. These folks
are making a ton of money at very low risk, so why should they stop of
their own accord? We already know they’re not great moral shining
lights. And others are just plain ignorant: they don’t realize they’re
breaking the law, and since no one pursues them for it, they probably
don’t care. Sadly, that means the burden is and is likely to remain on
the creator.

But I’d like to take a few minutes just to clear up a few
misconceptions. First, let’s tackle the notion you just have to change
a piece by 5 or 10 percent and it’s perfectly kosher. I just finished
an article for Lapidary Journal on defending your copyright (to be
published in the June issue), and according to the two copyright
lawyers I consulted, there is no magic percent. The legal standard is
“substantially similar.” This is, unfortunately, rather subjective –
rather on the lines of the famous pornography standard, “I know it
when I see it.” But it also means that if you take your piece and you
take the other piece and they look an awful lot alike, you’ve probably
got a good case for copyright infringement.

But if you don’t register your copyrights, it’s probably not worth
your time to pursue it (although a cease and desist letter from an
attorney may well end the stealing of your designs – remember what I
said about people doing it because they figure they can get away with
it?) Registering your copyright is essential to proving your case, and
it entitles you to significantly larger awards. I know registering
your copyright takes time and money – but maybe not as much of
either as you might think. Did you know that you can register an
entire collection or line of jewelry on the same form? Thirty bucks
isn’t too bad if you can do several months of work at a time. And the
form is only a couple pages long. If you haven’t looked at it, it’s
probably a good idea to surf on over to
U.S. Copyright Office | U.S. Copyright Office and take a peek. The form you’re
looking for is the VA – visual arts – form. In addition, AJM
Magazine published an article a couple years back giving line-by-line
instructions for filling out the form. (Call MJSA at 800-444-6572 to
ask for a copy.)

I’d also like to suggest contacting the Made in USA Foundation and
ask about their American Crafts Project. (Made in USA Foundation
202-822-6060, web site is www.madeusa.org, although they don’t have
anything there about the Crafts Project.) This project is intended to
help craftspeople fight infringers. They have several attorneys on
staff that are filing for injunctions against copyright infringers,
and will take those infringers to court. There’s only a minimal charge
to the craftsperson to do this, but you do have to share any
settlement you receive.

There’s a lot of careless attitudes in the marketplace about
intellectual property – how many of you have “unauthorized” software
on your computers? – but that’s not likely to change unless the
creators aggressively defend their rights. That’s tough, I know, (who
has the time?) but no one else is going to do it for the arts
community.

Anyone else have any ideas on what could be done by the arts
community to get across the message that design theft is, indeed,
theft?

Suzanne
Suzanne Wade
writer/editor
SuWade@ici.net
Phone/Fax 508-339-7366

35

I for one know that my company’s policy is to respect the rights of
the design originator. When we buy a wax, we pay well, with the
understanding that we get reproduction rights.

In the past, we have bought waxes which were taken from previous
castings. The originator got in touch, and we ended up getting better
quality originals and rights to reproduce.

The moral of the story is this: “Do the right thing as you know it at
the moment, and accept truthful corrections. Serve God and others
first, and you will come in a very comfortable third.”

Dan Woodard, Indian Jewelers Supply Co.

36 
   So the area jewelers know about the unethical conduct, but the
question is, what regulatory oversight is there to prevent or abate
the unethical conduct? The jeweler in question appeared to be doing
well. Without some form of oversight, those who deceive the public
will continue to prosper.

When a business’ livelyhood is being hurt by unethical conduct by
another business there are laws that offer protection. Many of these
laws are federal but there are all sorts of state laws, most called
“unfair trade practices” that can be called on in such instances. I
would suggest calling the state attorney general. They could
probably tell you whether thier practices are a violation of law. If
that is not the right area to go to call your state Better Business
Bureau. They will be able to tell you who the proper authority is to
look into such matters. This doesn’t involve an attorney or money
expenditure, although if a businessperson was to take a more personal
approach, one could send a letter to the offending businessperson
explaining that if the unethical practices were not ceased that more
public means of exposing the behavior would be pursued. Most jewelry
stores depend on consumer trust to be successful and the threat of
getting bad PR could make a difference. Of course some retailer
could care less and other options may have to be pursued. There is a
wild west mentality to capitalism in the USA and not much oversight
of the jewelry industry. It is up to business and consumer outrage
to get violations remedied. The main point is that there are things
that can be doen…we are not powerless

Larry Seiger

37

Dear Suzanne,

Your response was the best I’ve seen.

I would suspect that if you took a pole of all Orchid members under
the truth of God there would be nary one who hasn’t copied or been
inspired by someone else. Jewelry has been around too long for many
original ideas. The sad reality of design is not of origin but who
will copywrite and protect. There may be some differences between a
metal artist and a bench jeweler we’re contrasting here also.

I’m sitting on both sides of the fence here a bit. Of course I’m
going to make a solitary mounting if a customer wants one. Is this
design my idea? There sure is nothing original about that. Do I not
make it because I did not think of the original design? Where is the
line drawn? Do I have to buy all my solitary mounting from a large
firm who claims copywrite ownership? I don’t think so. It is my
position that not all things can be owned. Now should I not make a
cathedral mounting? By hand? From scratch? What about the ring or
pendant with the little curve in it? Where do we draw the line? This
may not be my original design. Do I try to point my customer at a
source I can’t find?

I feel the bottom line here is to be as honest and truthful as
possible. I HAVE bought my competitor’s jewelry and sold it for them
to my customer. This was the only ethical thing to do. (Your welcome
Helzberg Diamonds).

The goal I strive for is in several areas. First is to be honest with
the customer. Don’t lie or mislead them. Second is to educate them.
Every customer should be taken to your own school of knowledge. We
are the experts right? Third is to treat the customer like you want
to be treated yourself. I put myself in their shoes and ask what
would I expect? And finally offer value for the customer’s dollar.
These concepts are totally in line with how I want to be treated
myself. With these principles we can respect ownership in others and
yet operate independently.

I feel we all need inspiration for what we do. And part of my
position is to fabricate or make the styles totally myself. I won’t
knock off anyone else’s work nor will I undercut my competition or
badmouth him or her. But I have made diamond baguette jewelry that
sure looks like someone else’s stuff. There is just too much jewelry
on the market now from all corners of the world for me to try to
claim origin. I’m not going to stop making this jewelry because I
love doing it too much. I also don’t think it’s worth the legal
expense to copywrite a commissioned piece. In part of my definition,
the harder the piece is to make, the more ownership I feel. This may
not be the same for everyone. I also don’t claim a certain “style” I
like to make everything I can. So I’m probably falling into my “bench
jeweler” definition.

I think part of the reality we live in is that we have a sliding
scale of legal possibilities. The smaller the threat the less likely
we feel the consequence will be. This is the area people try to
position themselves in. The larger the fiscal potential the greater
the legality. You can sure bet I would never make Mickey Mouse
anything.

I do support legal ownership. I have several copywrites, trademarks
and a patent. But I don’t think we should scare people away from a
great occupation. This is fun to do remember? There may be exacting
legalities but the operating realities are vast and diverse.

All my best,

Todd Hawkinson,
TR the Teacher

38

Hello Geo, yes somewhere way back in an art class I remember studying
something about that, thanks for reminding me. In photography there
are certain styles and ways to lighting your subjects with names like
Rembrandt and such, I am sure that they would apply to paintings or
drawings of portraits as well.

Therefor is every portrait photographer and painter committing
copyright infringement. If it’s made originillay in gold and then
duplicated in silver or bronze does the law still apply. The original
has diamonds the dupe has topaz the lawyers as far as I can see are
the only winners.

Maybe we should apply some good all 60’s methods and collectively as
a group go to the offending shops and demonstrate in front of their
shops till the community and the news exposes them for the frauds and
cheats they are. Who knows? Maybe that would shame them into another
line of work!

I am sure we would all love lay claim to original thought for
everything we produce, but we would be doing a tremendous disservice
to our teachers and all of those great masters we have studied over
the years.

The thought of someone stealing our hard thought out designs can
infuriate the calmest of us, but it is a way of life in the 21 first
century. There is little pride left in self-achievement and great joy
in beating the Johnson’s. With that in mind I have included some info
on the copyright issue and attached the (COPYRIGHT OFFICE CIRCULAR 40)
which explains the law in detail.

I just ran onto this service quite by accident and I must tell y’all
that it’s fast becoming a fantastic source of education and
entertainment. Thank you y’all.

Sergio Rivero

WHAT IS COPYRIGHT? (This stuff is right from the horses mouth…THE
GOVERMENT)

Copyright is a form of protection provided by the laws of the United
States (title 17, U.S. Code) to the authors of “original works of
authorship,” including literary, dramatic, musical, artistic, and
certain other intellectual works. This protection is available to both
published and unpublished works. Section 106 of the 1976 Copyright Act
generally gives the owner of copyright the exclusive right to do and
to authorize others to do the following: ? To reproduce the work in
copies or phonorecords; ? To prepare derivative works based upon the
work; ? To distribute copies or phonorecords of the work to the public
by sale or other transfer of ownership, or by rental, lease, or
lending; ? To perform the work publicly, in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and motion
pictures and other audiovisual works; ? To display the copyrighted work
publicly, in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic, or sculptural
works, including the individual images of a motion picture or other
audiovisual work; and ? In the case of sound recordings, to perform
the work publicly by means of a digital audio transmission. In
addition, certain authors of works of visual art have the rights of
attribution and integrity as described in section 106A of the 1976
Copyright Act. For further request Circular 40,
“Copyright Registration for Works of the Visual Arts.” It is illegal
for anyone to violate any of the rights provided by the copyright law
to the owner of copyright. These rights, however, are not unlimited in
scope. Sections 107 through 121 of the 1976 Copyright Act establish
limitations on these rights. In some cases, these limitations are
specified exemptions from copyright liability. One major limitation
is the doctrine of “fair use,” which is given a statutory basis in
section 107 of the 1976 Copyright Act. In other instances, the
limitation takes the form of a “compulsory license” under which
certain limited uses of copyrighted works are permitted upon payment
of specified royalties and compliance with statutory conditions. For
further about the limitations of any of these rights,
consult the copyright law or write to the Copyright Office.

WHO CAN CLAIM COPYRIGHT Copyright protection subsists from the time
the work is created in fixed form. The copyright in the work of
authorship immediately becomes the property of the author who created
the work. Only the author or those deriving their rights through the
author can rightfully claim copyright. In the case of works made for
hire, the employer and not the employee is considered to be the
author. Section 101 of the copyright law defines a “work made for
hire” as: ? (1) a work prepared by an employee within the scope of his
or her employment; or ? (2) a work specially ordered or commissioned
for use as a contribution to a collective work, as a part of a motion
picture or other audiovisual work, as a translation, as a
supplementary work, as a compilation, as an instructional text, as a
test, as answer material for a test, or as an atlas, if the parties
expressly agree in a written instrument signed by them that the work
shall be considered a work made for hire… The authors of a joint
work are co-owners of the copyright in the work, unless there is an
agreement to the contrary. Copyright in each separate contribution to
a periodical or other collective work is distinct from copyright in
the collective work as a whole and vests initially with the author of
the contribution. Two General Principles ? Mere ownership of a book,
manuscript, painting, or any other copy or phonorecord does not give
the possessor the copyright. The law provides that transfer of
ownership of any material object that embodies a protected work does
not of itself convey any rights in the copyright. ? Minors may claim
copyright, but state laws may regulate the business dealings involving
copyrights owned by minors. For on relevant state laws,
consult an attorney.

39

Dear Lee-- The Jewelers Vigilance Committee is a watchdog organization
whose sole purpose is to pursue such matters: “The Industry’s Guardian
of Ethics and Integrity.” Orchidians should contact the JVC by
calling 1-212-997-1002; fax: 1-212-997-9148; or online at

Leah

40

Everybody who’s been around and shown their work alot gets knocked
off. You can either let it annoy you or you can be flattered. I
always feel that when one of my designs get lifted,it even further
helps my work sell and be better recognized where it’s already
selling. Anyway if some poor uncreative soul can’t come up with it
themselves and needs help…what the heck. I have tons more where
that came from and maybe that means its time to move on. Even those
of us who think we are being original are probably knocking off some
great master from a century ago!

t.lee