Use of Designs in a Published Book

Jewelry Discussion
41

To combine a couple of answers:

 1. "It's ok to copy a design if you change the design by 10%." 

  "It's ok to copy a design if you are using a different stone not
available from the designer."

Again, IANAL but in general either act would most likely be
construed as preparing a “derivative work,” which is a right owned by
the copyright owner and in general NOT allowed to either the
requester or to you. There are, of course, circumstances where a
court would say either was okay but I would live by the assumption
that the party plying those lines on you does NOT have the rights
(and probably fully understands they are requesting a theft and
hoping to get away with it).

I believe the VA fee (and most copyright fees in the USA) is $30,
not $35.

A recent change in the law (couple years ago) made the personal
copyright period life plus 70 years, not 50.

Counting just on your personal copies of 2D or 3D images will be of
little help should you need and choose to go to court, not everyone
will drop selling copies (if indeed they are) just from a polite
letter (though that is almost always a good way to start). At some
point you may need untamperable evidence (such as a dated
registration gives) or something that a judge or jury finds as
persuasive “proof” of copying/deriving. A record on your hard drive
when you know how to change the clock is clearly tamperable evidence.

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

42

Just a question here about creating something tangibly. does the
copyright only take effect when the actual piece is physically made
or do drawings/designs count?

Jeanne
www.jeannius.com

43

Jeanne,

The key idea in my post was, “if you intend to enforce your
copyrights.” A lot of designers I know, and many on this list, take
the approach that they make gorgeous, original, one-of-a-kind art
that cannot easily be duplicated by some big Chinese production
company, and by the time someone tries to copy them, they will have
moved on. They have no desire to make production pieces, and they
have no desire to spend gobs of money on lawyers to enforce their
copyrights. If you fall into that category, I wouldn’t bother
registering copyrights either. You still hold copyright to your
designs, since that attaches automatically when you create the piece,
and it’s NOT okay for someone to copy you, but you’re relying on
ethical considerations to stop potential copiers, not the fear of
your corps of lawyers. Makes sense to me, and you’re right, there’s
no reason, and probably no practical way, to spend a fortune
registering your copyrights if that describes you.

Registered copyrights are only useful when you take someone to court
– but if you are even remotely willing to do that, then registering
your copyrights is essential. Without a legally registered
copyright, even if you win the damages you can collect are minimal,
most likely not enough enough to cover your court costs, and
definitely not enough for a copier to do anything more than shrug.
Especially since by the time you get a court order, they’ll have made
their profit and moved on to the next design anyway. If you don’t
have a legally registered copyright, they get to keep that profit, so
what do they care even if you do win? You’ll be out thousands to the
lawyers, and they’ll just go home and copy someone else’s designs.

So take a little time to think about what you would do if you found
yourself in various situations of copyright infringement. What would
you do if it were another artist? What would you do if you saw your
design in a findings catalog? What would you do if you found it at
Wal-Mart? If none of those scenarios include “get me a lawyer and sue
the bastard” then the protection that comes from automatic copyright
should be ample, and don’t worry about registering your copyrights.
You can still write letters demanding the copiers cease and desist:
you don’t have to tell THEM you won’t take the matter further if they
don’t! Sometimes the threat of a lawsuit or fear of negative
publicity is enough to stop undesirable behavior. But if you’re
prepared to go to court to defend your rights, then you’re just being
penny-wise and pound-foolish to look for a cheaper way of "proving"
your copyrights. It may not be fair, but from a practical standpoint,
your choices are to either pay your money and register your
copyrights, or count on moral suasion, the fear of possible lawsuits,
and your own creativity and exquisite craftsmanship to keep the
copycats looking elsewhere. If you opt for the latter, that’s fine,
but you’re better off spending your time making jewelry, and never
mind running around mailing stuff to yourself or otherwise looking
for a way to beat the system.

Suzanne

44

Another bunched response:

that's fine if you are making many of the same design...but if I
were to copyright every piece I design, since most are one of a
kind,

Yes. Registering a copyright, getting a patent, registering a
trademark, polite cease-and-desist letters, taking a presumed
infringer to court, are all BUSINESS decisions, or should be. Making
them as emotional or principle decisions is rarely going to aid your
BUSINESS and may even kill it.

everything quoted there, you will see that there is no copying
allowed. no. no. no. no.

Well, no copying unless you have legitimate permission or the
copyright rights have expired. Same for derivative works. Never
forget that the copyright law attempts to strike a balance for the
benefit of both the public and creators. The early game tips toward
the creators while the longer term game tips toward the public, BUT
there are lots and lots of nuances in between so again, if you have a
specific situation where you wish to do something you are suspicious
about I strongly urge you to get legitimate legal advice from an IP
attorney–either that or simply don’t do it, the courts are generally
QUITE unfavorable to those who “guess” and even more so to those who
“guess” in favor of their own pocketbooks.

Just a question here about creating something tangibly. does the
copyright only take effect when the actual piece is physically
made or do drawings/designs count?

Maybe and yes. The drawings/designs, when in some fixed form (paper,
computer file, not just in your mind) are in their own right
protected by copyright but more than that they likely are sufficient
to protect the expression shown therein for the future final
medium(s). Imagine, if you will, that a screenplay is written and the
copyright registered. Obviously if copyright did not protect the
rights to actually shoot the film/TV show/whatever from the
screenplay it would be a toothless law. BUT, never forget that the
drawings/computer file/whatever DO NOT (generally) PROTECT the
IDEA—or even the exact same expression of those who come up with
it themselves.

For example, how few lines does it take to show the essence of
“bull”? You make your drawing and secret it away in a drawer then in
a discussion with “future Picasso wannabe” you mention that you’ve
done this “essence of bull” drawing. Three weeks later newspapers,
TVs, etc., worldwide “light up” with glowing praise for “future
Picasso wannabe” as his NY Gallery show opens showing simple lines
depicting the essence of cat, horse, human, eagle,…, and, of
course, “bull.” Remarkably “future Picasso wannabe’s” bull looks a
lot like your secreted away drawing that no one but you has ever
seen. Do you have any copyright rights? Of course, in your drawing.
That you could enforce against “future Picasso wannabe”? Extremely
unlikely, “future Picasso wannabe” did not copy or derive his works
from your secreted away expression. That’s the way copyright law is
INTENDED to work, your secreted away drawing did not benefit the
public but your idea (“essence” drawings) did.

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

45 
It's ok to copy a design if you change the design by 10%.

I haven’t been following this thread from the beginning, and I’m
sure it has drifted from the original question. The TRUTH is that we
ALL copy, to some extent. We look at work that has been done before,
and some of us emulate it, some of us borrow some of its concepts,
and some of us just plain copy the thing. I have seen numerous
“copies” of Native American jewelry, African jewelry Etruscan
jewelry, etc, by artists that were not Native American, African, or
Etruscan. True, a lot of the work can be considered in “Public
Domain,” but (in my opinion) simply copying a historical work may be
good financially, but lacks artistic integrity. An artist may base
their designs on some design elements found in historical work, but
these designs are then transformed by the artist’s personal and
cultural experiences.

The same can be said for more modern work. A lot of designers have
copyrighted work that is actually based on the work of another
artist or on historical work. The copyright actually preserves only
that artist’s interpretation of the design, and the artist must be
willing to defend their claim. You cannot copyright “granulation,” or
“granulation with a triangular pattern.” for example. Luna Felix,
however, used the granulation technique to copy patterns found on
Native Southwestern Pottery shards. Her actual designs can be
copyrighted. Whitney Boin’s “Post Ring” is copyrighted, but the use
of a thin bezel around a stone or the setting of a stone using round
or square post prongs is not, since it was a known technique and
design element prior to Whitney’s use of it.

Here’s the bottom line, the “acid test,” if you will: does the new
design look so much like the copyrighted design that it could easily
be confused with that artist’s work? If the answer is yes, then I
don’t care if you came up with the idea while living on a desert
island, it’s a copy. If it uses similar design elements or
techniques, but cannot be easily confused with the other artist’s
work, then it is your own. Of course, lawyers may argue against you
and me, as lawyers often do. The “10% rule” has often been argued in
court, sometimes successfully, sometimes not.

Whatever choices you make, consider your own integrity, both
personally and as a member of a community of artists, as more
important in the long run than the opinions of the US justice system.
My personal opinion.

Doug

Douglas Zaruba
33 N. Market St.
Frederick, MD 21701
301 695-1107
@Douglas_Zaruba

46 
that's fine if you are making many of the same design...but if I
were to copyright every piece I design, since most are one of a
kind, I would have to include the copyright fee in my sales price
for each item and I'd never get them sold because they would become
too expensive.

If your designs are not worth the additional $35 don’t worry about
the copyright enforcement. Because if they are not worth
registration then certainly they are not worth writing cease and
desist letters or going to court so why bother?

James Binnion
@James_Binnion
James Binnion Metal Arts

360-756-6550

47 
how can you know that you are, in fact, different? -- mother nature
has so much better chance at randomness than we humans do!

you don’t have to be random to be different, you can come from any
direction/dicipline at creating an original piece, and you will
have a different piece each way you do it, and every thought that
you have along the way, about different offshoots of what you are
working on, and ideas for other pieces, etc., IS, something
original, and different, all you have to do is act on the ideas,
which will cause more ideas, and if you act on those, before you
know it, you will have so many original things on your sample
table, that you will be scratching your head, wondering how they
all came about, and the question of originality will never arise
again, ok once more, you sit down, work on something, go with
ideas that come up and go with the flow, AND it comes out:
ORIGINAL, mother nature comes from you, dp

48

On the subject of copyright registration-- does each individual
design have to be registered separately, or is it possible (legal)
to “batch” them-- say, all the designs for a year, a month or a
quarter-- call them “designs december 2005” and register them for
one fee? Years ago, I was told that one could do this (by the
founder of “lawyers for the creative arts”) but I wonder whether it
was/is correct.

–Noel

49 
On the subject of copyright registration-- does each individual
design have to be registered separately, or is it possible (legal)
to "batch" them-- say, all the designs for a year, a month or a

I don’t think such batching is allowed for jewelry works in the US
but I may be wrong. It may be that some “series” or kinds of groups
do meet the criteria but it would seem odd to me if a “December
2005”-titled, miscellaneous bunch of stuff did. IANAL, it’s not
something that I’ve needed to study, consult your IP attorney.

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

50

I just got finished working with a patent attorney on copyright and
confirmed with the copyright office that you can batch work. The
provision, however, is that none of the items in the “batch” can have
been offered for sale prior to the copyright filing. What this means
is that if you have a grouping of designs - say South Sea Pearl
Brooches, etc. - and you have 10 of them. You can copyright them as a
grouping. But if any have been offered for sale prior to the filing,
the batch filing is not available. I’m not an attorney, but have
worked with them long enough to have learned things…too many
things… so this is not offered as legal advice.

51

Greetings Noel,

I happened upon your question today regarding copyright registration.
Firstly, I hope this message goes where it is supposed to as I am a
new user of Orchid and am a bit unsure if I am responding correctly.
Also, I apologize if this response has already been stated and I am
just being redundant.

With regard to copyright registration, there is an alternative to
actually paying a fee and registering it. Before I continue, I should
note that this has come from my wife who happens to be an
attorney. Basically, all you need to do is make the copyright symbol
(“C” within a circle) with the year it was made after it. It would be
preferable to put “all rights reserved” after it, but in the jewelry
world…well we all know how ridiculous that is. At any rate, this
marking publicly gives notice that the piece is not in the public
domain and is therefore protected. However, if someone were to copy
your design (with the copyright mark on it), before you could
litigate it, you would then need to register your copyright.
Consequently, you can protect all of your pieces by marking them
accordingly and without having to pay $30+ for each design. Again,
the only catch is that to pursue a claim of copyright infringement,
you would first have to register your copyright. Ultimately, what is
important is giving public notice that the piece is protected, which
is accomplished by marking and dating the piece.

I hope this made sense and that you can find it useful. Best of luck!

Regards,
Erich C. Shoemaker
Erich Christopher Designs

52

I would like to briefly interject here regarding the elusive “10%
rule”.

While not an attorney, I am an artist, designer, and copyright owner
who has been to the mats in federal court on this one on several
occasions.

There is no 10% rule, or 20% rule, or 50% rule, or 99% rule. It
doesn’t exist. It is pure urban legend, and has no basis except as an
excuse for those who want to give themselves a free pass on
infringing upon the work of others. It also keeps intellectual
property firms flush with cash settlements from greedy opportunists
who(wrongly)believe it is cheaper to steal design work than it is to
obtain the rights to produce it through legitimate channels.

The excuse that any work which draws its inspiration from, or
contains elements of ethnic or historical themes is “public domain”,
and is therefore fair game is also laughable.

There is a reason that good design sells, and mediocre design
languishes. The difference is where the true(market)value of a work
is found.

My best advice for those who look extensively to the work of others
for ‘inspiration’, is to go to those who ‘inspire’ you, pay them to
design your products. If your didn’t create it, and it’s desirable
enough to ‘steal’ - you can lay odds that it doesn’t belong to you.

Michael Rogers
M. M. Rogers Design
Albuquerque NM, USA