'Inspired by' vs 'Copy' in Custom Projects

[the_mother_thing]

I know this discussion has been had a few times, and I have read some of those threads; but they largely were after-the-fact allegations, and they usually turned into whizzing contests and designer popularity contests; that horse has been beat pretty dead, so hopefully this doesn't go 'there' or target any specific jeweler or consumer. Also, let's assume that it's generally understood that if you ARE looking to 'copy' a design, you should go to the original designer for ethical/copyright purposes, assuming you know who that designer is, of course.

Here, I would like to proactively discuss and understand specifically - when a non-trade consumer is in the 'conceptual phase' of a project (e.g. just bought a stone, churning through ideas, browsing Pinterest and "show me" threads, coming up with their 'vision', etc.) - what is considered 'generally acceptable' in terms of differences where one (or more) pieces truly 'inspire' a new piece vs 'copy' one. I've read there is a rough percentage in differences (I forget what that was ... 10% or 20%?), but I'm not clear on what exactly those 'differences' comprise and how they add up.

For example: if the stone/s used are all a different cut, color, size, or are CS vs. diamond, etc, is that enough of a "difference" if everything else is the same? What if just the metal/alloy is different; if just the proportions are different; if only new elements are added to an otherwise unchanged design; in cases of a solitaire, what about only a different shank or 'head'; what about only metal finish differences? Obviously, if ALL of those were different than an existing design, I'd (personally) feel "yea, threshold - MET". But what if it's only one of those, or a couple of them? And what 'percentage' do/would you personally assign them to arrive at an "inspired by" vs. "copy" consensus? Are there others? Or is it just an overall comparison of the original vs. 'inspired by' piece?

I have a a couple projects that I'm in the "conceptual" phases of right now, and I am relatively certain my vision for each exceeds any 'threshold' in this arena, but they do have some concepts/elements that are borrowed from several existing designs ... more of a 'mish-mash' of about 5 different pieces (in each project) plus some changes to each for what I want, proportions, stones I'm using, etc. My point being - I'm not really worried about this for any of my current projects.

But it did get me thinking about this topic, and wishing there was some "generally acceptable" guidance for consumers to help them not only understand and be respectful of others' designs when creating a piece, but also feel 'mind-clean' about their pieces. As a consumer, I don't know that I want to consult with a copyright attorney to determine this each time I want to make a new piece, so some 'suggested guidelines' would probably help unblur these quite gray areas for not only us seasoned bling-aholics, but novices coming here for the first time as well.

ETA: Trade members' opinions are not only welcome, but encouraged!

 

[the_mother_thing]

I failed to specify that this question is largely around non-'average-solitaire' type projects. In other words, non-'Tiffany-style' solitaires. Rather, more along the lines of something like this (which I don't believe is from any PS vendor) as an example of a 'unique' design for purposes of a neutral discussion.

If I replaced the lions with crabs, and the sapphires for rubies, is that sufficient? (Not that I am considering that ... just an example).


Details on it if you care to read: http://www.itv.com/news/2016-05-11/new-diamond-ring-is-a-dazzling-tribute-to-leicesters-glory/

 

[VRBeauty]

Two thoughts:

With respect to the specific example you provided, to me that would not be sufficient. The zigzag/crown element of the design is very distinctive and should by itself be considered the "property" of the original designer. In in fact, I could see the original designer reusing about setting but changing that side motif, for example using other elements of the zodiac, as part of series. So to my mind, the example you provided would still be he copied rather than an "inspired by."

I also think though that although those of us who frequent Pricescope are aware of the ethical and copyright issues surrounding copying, in most cases it would be up to the jeweler who is being asked to reproduce a design to make this determination and convey those limits to the customer.

 

[Rockdiamond]

Interesting subject.
An analogy:
Say you really loved a work of art by Monet ( or whoever)
If you found an artist able to replicate a Monet, and you only wanted it for your personal use, would that be ok?

Last week, DW and I stopped into an antique stone - with a big handwritten sign advising entrants NOT to take any pictures.
I asked about it- the owner was an artist, their paintings were displayed on the walls. ( pretty mediocre IMO, not that that matters)
She told us how upset she got when someone snapped a picture of her painting.
AS an artist myself, I asked her- maybe that was a really nice compliment? I mean someone liking her work enough that they wanted to remember it.
If someone wanted to sample a song I'd written to use it in another project, I'd see it as a compliment.
Of course if they made a lot of money off it, I might not be so magnanimous.


I don't know the answer, just interested in the discussion.

 

[the_mother_thing]

VRBeauty: I am so glad you mentioned that 'distinctive element' comment, as I had read about that but forgot to include it. I admit, I am not clear on what that really means for jewelry. With logos and 'brands', I get it; in jewelry though it's a little fuzzy because so many 'elements' of a design are seen in so many other pieces and even architectural inspirations, including that zigzag element (I have seen that in several antique/vintage pieces). Now, if a logo is replicated on a piece, clearly that is wrong. Can you (or anyone else) perhaps elaborate on that more from your perspective? What do you consider to be a 'distinctive element'?

And I know we cannot control what a jeweler does, but we can control what we do, as well as help educate others/new consumers about the importance of respecting original/unique designs and the artists who create them (assuming there is a collective stance on such, which I don't think there really is, of course, which is why I am asking). I still see periodic newbies asking for an exact copy of something, and one or two people refer the person to [enter bench name here]. And I am not 'dogging' out a jeweler per se or anyone who does recommend such; but it does seem to be in keeping with the theme of PS to not discuss/encourage 'sims', so it would seem that recommending a vendor to do such would be frowned upon as well. But perhaps the line is drawn at diamonds/gems and not the jewelry itself.

Rockdiamond: I get your analogy, but I think a Monet may be different, as Mr. Monet isn't around anymore to hook me up with an original. But we're really not trying to make 'exact copies' here; rather, the opposite really - how to ensure you aren't making what the industry (and law) considers a 'copy'.

I will use myself as an example - I am not someone who looks at a newly acquired gem/diamond, and hears angels singing a theme or an aura glowing around the stone with an immediate 'vision' for how to set it. I am just not that artistic/creative; and I usually buy a stone because that stone speaks to me with no pre-determined design plans in mind ... which explains why I have such a large stash of loose stones. So I will peruse Pinterest/Google images/PS, etc. Hypothetically, if I bought a Burmese red spinel, I will use 'Burmese red spinel (jewelry)' as my search terms. I'll see what pops up, and save the items I like with specific notes about what specifically I liked about it. By the time I am done, I might have 15+ rings, take the elements from each that I like, mash them together like Brunswick stew, probably eliminate many to keep the 'busyness' down, and voila.

 

[OreoRosies86]

There is nothing new in jewelry, so I don't see borrowing multiple design elements as copying.

 

[Resonance.Of.Life]

The % change is actually a myth as there is no way to quantify such a change in what is essentially a piece of art. If it is similar enough for lay people to be confused as to the origin of the pieces, it would fall under infringement of intellectual property laws.


15.6 INFRINGEMENT—ELEMENTS AND BURDEN OF PROOF—TRADE DRESS (15 U.S.C. § 1125(a)(1))

On the plaintiff’s claim for trade dress infringement, the plaintiff has the burden of proving by a preponderance of the evidence each of the following elements:

1. [describe the plaintiff’s trade dress] is distinctive;

2. the plaintiff owns [describe the plaintiff’s trade dress] as trade dress;

3. the [describe the plaintiff’s trade dress] is nonfunctional; and

4. the defendant used [describe trade dress used by the defendant] [trade dress similar to [describe the plaintiff’s trade dress]] without the consent of the plaintiff in a manner that is likely to cause confusion among ordinary consumers as to the source, sponsorship, affiliation, or approval of the [plaintiff’s] [defendant’s] goods.

 

[the_mother_thing]

Another helpful point; thank you ROL.

I found this article specific to this topic which helps explain some of these terms being discussed: http://saperlaw.com/2008/09/18/“designer”-jewelry-vs-“inspired-by”-jewelry-intellectual-property-infringement-and-unfair-competition-considerations/

There is more via the link, but I captured & highlighted below the parts that pertain specifically to the design process/aspect (as this thread isn't intended to get into the lawsuit side of things, but drive awareness on the 'front end' of the jewelry process).

Are you dying to buy a new Rolex watch or maybe a Cartier ring but don’t have the budget for one of these pricey brand name items? You would never consider buying a “counterfeit” Rolex, but perhaps you’ve considered buying an “inspired by” piece instead: a watch that looks kind of like a Rolex, but is not branded with the famous mark. After all, vendors selling “inspired-by” jewelry and accessories aren’t infringing on any designer’s rights – right? Increasingly litigious jewelry designers say: wrong! Even inspired-by jewelry may also constitute infringement.

This article analyzes copyright, trademark, and unfair competition law as applied to “inspired-by” jewelry designs. The article explains the necessary elements for establishing a claim under each area of law and provides practical tips to avoid legal problems in these areas.

...

II. Trademark Interests

Trademark protection reflects similar considerations to copyright law. In the case of “inspired by” jewelry designs, trademark concerns deal largely with the products particular “trade dress.” Originally, the definition of trade dress was confined to the overall appearance of a products packaging or “dressing.”27 Gradually, this definition has expanded to include the design of the product itself.28 Trade dress today encompasses the total impression of a product including its package, size, configuration, color, design, and trademark, all of which may serve as a source identifier.29 A trade dress artifact serves as a source identifier when consumers recognize a product’s trade dress and immediately associate the product with a particular business or manufacturer.30

A jewelry design’s trade dress consistently includes the combination of general elements that, when taken as a whole, combine to create a unique and distinct source identifier. Just as under copyright law, each individual aesthetic feature may not be protectable, however, the overall impression created through their combination may be.31 For example, a standard circle with a gold chain will most likely not be protectable for trade dress. However, an otherwise simple design could be protectable under trade dress law if it had a few additional specific elements such as three strategically placed diamonds or special engravings.

In order to succeed on claims for trade dress infringement, a plaintiff must prove two factors: (1) that their design is non-functional;32 and (2) their design is distinctive or has acquired a secondary meaning prior to the alleged infringer’s entry into the market.33

a.Functionality
“Functionality” is the quality of serving some useful purpose.34 For example, a chair manufacturer cannot claim the four legs of its chair as a trade dress. Those four legs are a useful and functional aspect of that chair. Should a competitor come along and make another chair that has four legs, the competitor has not infringed on the manufacturer’s trade dress because those legs serve a purely functional purpose.

Whether jewelry design is functional will depend on the effect that protecting a specific design may have on marketplace competition.35 If the exclusive use of a particular trade dress “would put competitors at a significant…disadvantage,”36 the design behind that trade dress is considered functional. For example, the hands or numbers on a watch face would probably be considered functional since exclusive use of these aspects would severely hamper competition in the watch industry. On the other hand, a very intricate jewelry design may not be considered functional since exclusive use of its particular combination of elements still allows for other competitive pieces of jewelry.

b. Distinctiveness
Once a plaintiff establishes the non-functionality of its design, it next must prove that its design has acquired distinctiveness through secondary meaning. This requires establishing that (1) the combination of elements in the design identifies the plaintiff’s brand as the responsible brand, and (2) that the general public actually identifies the design with the brand.37 Several factors are considered, including: (1) consumer surveys; (2) evidence of intentional copying by the defendant; (3) advertisement expenditures; (4) sales success; (5) length and exclusivity of use; and (6) unsolicited media coverage.38 Due to the factual intensity involved, judicial determinations of secondary meaning are unpredictable. Jewelers with particularly famous designs, however, can take advantage of this fact-specific determination by conducting surveys, producing their advertising budget, and producing sales receipts to support their argument in favor of a finding of distinctiveness. Taking advantage of their financial strength, these famous jewelry designers may often tip the scales of justice in their favor.
...
IV. Conclusion
The relationship between high end jewelry designers and their copy-cats present unique issues for adjudication in copyright infringement, trademark infringement, and unfair competition cases due to the fact that many high end jewelry designs consist of a combination of elements which exist in the public domain. Alone, these elements would not qualify for protection under either copyright or trade dress law, but when combined they may qualify for both. Such determinations are highly fact specific, and may present interesting quandaries for students, legal professionals, judges, and the increasingly prominent field of intellectual property. To avoid legal problems, jewelry designers should: (1) err on the side of caution when attempting to mimic any preexisting design; (2) refrain for associating the piece with the brand responsible for any preexisting sources of “inspiration;” and (3) emphasize the piece’s origin with the jewelry designer’s enterprise.

This raises some additional observations & questions for me:

1) There are only a VERY small handful of jewelers whose pieces I *might* be able to look at and say "that looks like XYZ designer's piece." On PS, we routinely see many pieces from the same general sources (designers, benches, etc), so our frequent exposure by virtue of being bling addicts makes us a bit more 'aware' than perhaps the average consumer in this regard. My point being, I would have never given this much thought when I first came to PS looking for a stone. And even after a few years here, I am still not consistently able to look at even some 'high-end' pieces and immediately think 'oh, that is clearly XYZ'. Only a very small few (literally: three) 'frequently-used PS' vendors' work has an overall 'look' that jumps out at me as 'identifiable' or generally 'distinctive' overall. That said, each of these three also creates some 'out of their norm' pieces that I would not have otherwise thought to be 'distinctive' and from that same vendor. Same for some brick & mortar jewelers who sell dozens of different brands as well as sometimes make things for clients.

2) Taking the idea of 'trade dress' into mind, does that mean that a person can not take inspiration from any piece of that 'brand', or just that they cannot copy it exactly? Obviously the latter is wrong. But if I see a detail on a ring - let's say the vertically-set stones on the example ring's gallery - does that mean I cannot execute just that aspect with, say, a completely different basket and shank? I wouldn't think so, based on this article's definition of what comprises 'trade dress'. And this is where my questions about the 'acceptable variances' between an original piece vs a consumer's inspired-by concept come in to play. And for me and the way I come up with ideas, it is specifically relevant and necessary to understand. There is really only one piece I can recall where I thought 'I would want EXACTLY that' with no other changes (except perhaps the type of stone used). So there almost seems to have to be some level of 'change' whereby something is no longer considered a 'copy'. And that's what I am trying to understand.

 

[Clio_C]

I honestly don't have a formed opinion on your original discussion question, but I wanted to point out that I think Tiffany & Co. and HW have some of the most well-known, distinctive ring setting styles, and those have been copied to death. Take Tiffany - the six prong solitaire (with knife edge and that little donut bump that sticks out so a wedding band never sits flush), the Legacy, the Soleste... these are iconic, distinctive designs, but nearly every ring designer has essentially knocked one of these off at some point (pardon me, "been inspired by"). I don't know, jewelry to me is like fashion. The couture designers will come out with something in the seasonal shows, and before you know it, budget-friendly, "real world" versions of the same basic designs are in Banana Republic, J Crew, etc.

The thing is, there's always a quality difference when you go with the original. I've seen many Soleste-inspired rings, but there's just something about that Tiffany & Co. original that is superior. My guess is that it's the same with the big hand-forged ring designers. You can try to copy it, but no one will nail the craftsmanship or proportions quite like the master. Mostly likely, those buying the knock-off would never have been a customer of the "master" to begin with.