Poll: Is it ethical/do you feel comfortable having a jeweler recreate a ring you like but can''t aff

[Jolie]

The law firm that represented Tiffany against a copyright infringement lawsuit has an article posted on its webpage. Part of Tiffany's defense was that basic "forms and patterns" of its Etoile style were "part of the common vocabulary in jewelry design and could not be copyrighted. Tiffany's argument was further bolstered when the Copyright Office was persuaded to intervene in the case. The Justice Department sent an attorney to court to reaffirm the Copyright Office's decision in refusing to register Morelli's [the plaintiff's] pieces."

At the conclusion of the two week federal trial, the jury found that Tiffany & Co. had not infringed upon Morelli's designs, and that his designs were not copyrightable.

I find that article interesting because it means, to me, that not all specialty designs are copyrightable (that was part of Tiffany's defense against the lawsuit). And just because a design shows up at a specialty jeweler, that doesn't mean that the jeweler is the owner of a copyright. What the article doesn't tell, however, is how are we supposed to recognize a copyrighted piece when we see it? I suppose professional jewelers may be held to a higher standard (they would be in a better position to recognize a copyrightable piece when they see it), but how would an average consumer recognize a copyrightable piece, as opposed to merely one that is "part of the common vocabulary in jewelry design and could not be copyrighted" (Tiffany's defense)?

Edited to add: The law firm is called "Duane and Morris."

 

[noobie]

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On 7/20/2004 4:54:19 PM fire&ice wrote:





Ya know, in the end, one has to feel comfortable with what one does. And, as a consumer, I'm not taking the heat for what is an industry problem.
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I think that's a good way to summarize it. Thanks Greg and Jenwill for the explanations, they were helpful.

One last thing F&I, funny you bring up Ritani, but Michael B has one that looks very much like it. All of it makes it more confusing.

 

[Hest88]

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It's the difference between telling an artist that you want a painting of water lilies, or telling an artist to paint water lilies exactly like Monet did.
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Oh perfectly said!

 

[Superidealist]

Jolie wrote:
What the article doesn't tell, however, is how are we supposed to recognize a copyrighted piece when we see it?

You could contact the manufacturer. That's what I did in the case of the ring Robbins Brothers offered to knock off. In this case, the design was copyrighted. If you are considering asking that an exact copy of a designer ring be made, then it is your responsibility to do your homework, be it confirming that the design is neither patented nor trademarked or showing prior art. I seriously doubt, though, that those who would ask for this in the first place are the kind of people who would be conscientious enough to do as I suggest.

 

[Greg]

Actually, all artwork (including jewelry) is copyrighted upon creation. So if the piece in question is relatively current (copyright generally lasts the artist's lifetime +70 years) you don't even have to check. It is copyrighted simply by existing.

From www.copyright.gov:

"When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created."

And just for kicks, on of the more interesting questions I've ever seen on a FAQ page:

"How do I protect my sighting of Elvis?
Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. Just send it to us with a Form VA application and the $30 filing fee. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph."

 

[chialea]

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On 7/20/2004 7:56:29 PM Greg wrote:

Actually, all artwork (including jewelry) is copyrighted upon creation. So if the piece in question is relatively current (copyright generally lasts the artist's lifetime +70 years) you don't even have to check. It is copyrighted simply by existing.

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This may or may not be strictly true based on how "derivitive" something is considered to be. If I reproduced something in the common domain, it doesn't become re-copyrighted.

 

[hoorray]

geezz..where's Lawmax when we need him?

 

[Jolie]

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On 7/20/2004 8:03:52 PM chialea wrote:

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On 7/20/2004 7:56:29 PM Greg wrote:

Actually, all artwork (including jewelry) is copyrighted upon creation. So if the piece in question is relatively current (copyright generally lasts the artist's lifetime +70 years) you don't even have to check. It is copyrighted simply by existing.

----------------

This may or may not be strictly true based on how 'derivitive' something is considered to be. If I reproduced something in the common domain, it doesn't become re-copyrighted.----------------

Which I guess is similar to what Tiffany argued (successfully) - that the design they were accused of stealing was actually "part of the common vocabulary in jewelry design and could not be copyrighted."

And to get off-topic, my simplistic "research" of all this copyright stuff shows that the song "Happy Birthday" is still protected by copyright. Techinically, the next time someone sings this song in a restaurant or other public place, they have to pay royalties or it is stealing (well, copyright violation). So to stay moral, I guess I have to stop singing this song (I don't want to bother paying royalties). Bummer.

 

[Superidealist]

lop wrote:
geezz..where's Lawmax when we need him?

Lawmax is a her, not a him. I think you mean Lawgem.

 

[coreyzat]

I just tried to buy a setting, and they wouldn't sell to me because I already had a stone that I didn't buy from them. I felt completely justified in having a "copy" made, with some modifications that I wanted. If they refuse my business, I have the right to take that business somewhere else.
Corey

 

[mepearl53]

Good debate! Here are some examples of what can and can't be done with the designers pieces.

Ex #1 Michael B's lace collection is a copyrighted design and name. To duplicate this would be a violation of this. To use the name "Lace Collection" is the same. His all pave band the "Princess Collection" is his copyright. The style is not protected.

Ex #2 Michael Beaudrey works in the Art Deco design area. Many designers are also now in this area of design. To duplicate his work down to the engraving and filigree is a no no. To engrave a ring and put filigree on it is fine.

Ex #3 Whitney Boin's "Post Collection" is protected by name and original design. This was his original design and most historians of modern design concure with this. In this case he was the first to utilize this discipline. But as one person said earlier that a round ring, a bezel and two posts have already been done. But he was the one to put them all together and most museums of contempory art acknowledge this design.

Ex #4 David Yurman's cable collection. Is this a original design? He won a lawsuit saying so. My guess is it's the old saying that who ever has the most money wins. The big guys can afford to protect their brand and the little guy gets knocked off.

Lastly someone said that a store refused to set their diamond. Rather that having a piece knocked off go to the net. There are many highly reputable jewelers out there that would be happy to help you with this. And you save the tax!

Bill Pearlman
www.pearlmansjewelers.com

 

[Superidealist]

mepearl53 wrote:

And you save the tax!

Do you? That's another topic that's been discussed to death.

 

[fire&ice]

I received the following from a lawyer friend well versed on the subject. *And* I have permission to post it here.

...since I don't know how to cut and paste, I'll retype it. If I make a typo, I apoligize to the orgininal author....

"I would not want to be a jewelry designer defending a copyright in my designs for the very reasons you've been discussing: there is too little new under the sun. When looking at a design, the court will perse out the derivative, unprotectable elements and look only at the new and original elements. Oftentimes, especially with jewelry, that leaves next to nothing. For there to be infringement, there must be a substantial similarity with respect to the protected elements, not the "design as a whole." Most designers I'm aware of who've tried to defend their designs in court either lost or gave up because of the difficulities and expense involved. I can think of only one recent case (David Yurman) in which the designer won a significant verdict for infringement."

So, there goes to the legal aspect. As too how much of this translates to the ethical aspect is another discussion.

 

[mepearl53]

D

I know your supposed to pay the use tax but I don't think many people do.

And the quote from the lawyer was good. At $350.00 per hour those dollars go pretty fast. So it's back to ethics. Do you or don't you? I think the greater majority of customers would rather have the real thing. It's expensive to put a quality diamond into a quality designer piece. I have plenty of customers start with a solitair and then just trade it in when they are ready for the branded ring. Are they worth it? You bet they are!

Bill Pearlman
www.pearlmanjewelers.com

 

[Jolie]

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On 7/20/2004 7:36:12 PM Superidealist wrote:

Jolie wrote:
What the article doesn't tell, however, is how are we supposed to recognize a copyrighted piece when we see it?

You could contact the manufacturer. That's what I did in the case of the ring Robbins Brothers offered to knock off. In this case, the design was copyrighted. If you are considering asking that an exact copy of a designer ring be made, then it is your responsibility to do your homework, be it confirming that the design is neither patented nor trademarked or showing prior art. I seriously doubt, though, that those who would ask for this in the first place are the kind of people who would be conscientious enough to do as I suggest.----------------

Perhaps. But I also seriously doubt the manufacters would willing state that a design they use is not copyrightable. And even if the manufacturer sincerely believed they possess copyright protection, that doesn't necessarily make it true (again, I refer to the Tiffany case, where the design they were accused of stealing was not, in fact, copyrightable).

So even if copyrights don't have to be registered, registration would at least indicate that the Copyright Office accepted the design for registration. A lack of registered copyright could (although not necessarily) mean that the design was actaully rejected (like Morelli's) by the Copyright Office; or it could mean the manufacturer didn't want to take the chance of having the application rejected (in case the rejection could be used against them like in the Tiffany case).

Anyway, a registered copyright would clearly indicate the design is off-limits for copying. Anything short of that, and I think it's an open question, regardless of the manufactuer's claim or sincere belief. So I guess it does come down to an individual's own conscience and informed belief as to whether the design appears copyrightable.

 

[Mara]

F&I to your friend's point, it seems as though it'd be pretty hard to say that something was out and out copied, because jewelry has so many small nuances that make EACH PIECE unique. So if someone says..I adore the MB lace ring, I want the exact same thing. Chances are they will not get the exact same thing, I don't think I have ever seen a replica that is SO 1000% accurate. Chances are the head is slightly different, or prongs are different or the basket is not as contoured. So while one may start with the idea that they want an exact replica...the end result is something unique in it's own right. Intention to copy vs end result not copied?

One thing that is interesting in this monster of a post is that it was noted that it's okay to try to replicate the Tiffany style ring. I don't have an opinion on it being right or wrong...but I find it interesting that many say it's okay to replicate THIS ring but seemingly are against others? The Tiffany ring is the most replicated style out there it seems, and they all use 'Tiffany style' even when the end result looks like a dime store version of the real thing. Why is this style and replication so accepted but the idea of replicating a 'designer' like MB so abhorrent?

This is where I think it becomes very confusing for the average consumer and unfortunately most people don't think in black or white terms, and half the time they don't even think about copyrights if you ARE just an average consumer (aka not a pscoper!).

Lastly, I have seen many ring styles, and one of the reasons we went custom with ours was because we did not find ONE RING that had EVERY element we wanted. So in that case, the only option was to go custom to get the ring in my mind. We took elements from various rings, and in the end replicated the jeweler's wife's design most closely...but our ring was still so unique when all was said and done. So then am I the designer?

 

[Jolie]

So if I have a copy of Mara's ring made, she could sue me for copyright infringement.

 

[Superidealist]

Jolie wrote:
Perhaps. But I also seriously doubt the manufacters would willing state that a design they use is not copyrightable.

I'm sorry. My comment was meant to address the question of how a consumer could discover if a designer setting is copyrighted, not copyrightable. The designer should be able to give an easy answer to the first question. An answer to the second, as we've seen, may not be so easy.

 

[Superidealist]

Mara wrote:
F&I to your friend's point, it seems as though it'd be pretty hard to say that something was out and out copied, because jewelry has so many small nuances that make EACH PIECE unique. So if someone says..I adore the MB lace ring, I want the exact same thing. Chances are they will not get the exact same thing, I don't think I have ever seen a replica that is SO 1000% accurate. Chances are the head is slightly different, or prongs are different or the basket is not as contoured. So while one may start with the idea that they want an exact replica...the end result is something unique in it's own right.

A lesson to be learned here is that if you want an exact copy of a designer piece, don't have it copied. If you want the real deal, buy it.

 

[fire&ice]

And, to even further stir the pot, Mara, often the "copy/insprired" is of considerably better craftsmanship & quality. A designer name does not guarantee quality. One has to look no further than the Yurman stuff.

There is something special about working w/ a platinum/goldsmith one on one. I have always supported the individual. I like things that are hand made. I'm one of those quirky people who don't mind the imperfections of a man rather than the perfection of a machine. My leather portfolio (handcrafted by a leather worker) is of significantly better quality than some dopey LV one.

Now, knocks offs from one manufacturer to the other may not result in better craftsmanship. I would not put an experienced benchman in this category.

But, that still leaves my point - whatever that may be. Oh yeah, I agree that most custom jobs are just that - custom jobs.

 

[Superidealist]

I imagine the vast majority of copies are noticeably inferior to the works that "inspired" them.

Furthermore, that you buy a designer piece does not mean that your ring will not be handmade and that you will have no say in the process.

 

[fire&ice]

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On 7/21/2004 7:24:45 PM Superidealist wrote:

I imagine the vast majority of copies are noticeably inferior to the works that 'inspired' them.

Furthermore, that you buy a designer piece does not mean that your ring will not be handmade and that you will have no say in the process.----------------

Define copy? And, my experience - no guarantees one way or the other. Inlcuding level of handwork, which is not as prevelent in a manufacturing firm as in a one man show.

Remember, I collect American Studio jewelry.

 

[Superidealist]

fire&ice wrote:
Define copy?

If you don't already know in your heart if you are asking for a copy of a designer piece, no definition, no matter how carefully crafted, will sway you.

 

[Consultant]

Hey guys,

Can't help but to stick my nose in. Why are we going into politics and making damaging remarks about each others homeland? I thought this forum is for sharing of experiences in good faith? With such unconstructive & negative discussion going around, I doubt many other jewellery enthusiasts like myself would wanna stick around...

So guys, pls stick to the objective of this forum and may good sense prevail.

By the way, Mr. Stephen, does CA knows that you are signing off as CA, Singapore???

 

[aljdewey]

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On 7/15/2004 7:14:55 PM noobie wrote:

Jennifer, just for clarification. Suppose I looked at 20 designer settings and didn't like any of them. I then went to a custom jeweler and had them make me something that was very similar, but not exactly the same, say shank thickness or width, rounding of a knife edge, single prong versus double prong. I do that so that I get exactly what I want, is that stealing? You know doing this may even cost me more than the original piece.----------------

Noobie, good point......and leads me to something that hasn't been mentioned thus far. Copyright law protects one's expression (interpretation?) of an idea in a fixed medium.

When determining what is and isn't "infringement", one of the things considered is how "transformative" something is. If you take the Yellow Pages and simply decide to rearrange all the data so that it's sorted by 10-digit phone number instead of by name....and that's the ONLY change you make to it.....that likely isn't "transformative" enough to be conidered a "new" work and might likely be considered an infringement.

However, what you describe above may be transformative enough to meet the criteria of a *new* work. You don't like the exact settings from 20 designers, but you like individual elements from several designs. You like the prongs on one, the gallery on another, the metal combination of yet another, the relative positions of the center stone to side stones, etc. If you have a jeweler create a ring with all the elements you like, it's possible that such work is "transformative" enough to disqualify it as an infringement.

 

[chialea]

... not that you can infringe on the phonebook in any case, as facts cannot be copyrighted, just to make it more confusing

 

[aljdewey]

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On 7/18/2004 2:45:19 PM Patty wrote:

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On 7/18/2004 2:26:11 AM Mara wrote:









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Mara, surely you don't believe this. Everyone wins? You know who loses? The retail store owner loses. And the honest people in this world lose. Stores often institute stricter return policies to cut down on this kind of thing. They end up requiring honest purchasers to go through more of a hassle to return an item. And prices inevitably go up because of theft. Honest people end up paying more in the end.

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I'm not going to make any value judgments on whether or not I think it's *morally* right or wrong to do what's suggested above. I will, though, ask a question to provoke a bit of thought.

Scenario 1: Jane Doe buys a bedspread for $200 at Pottery Barn. She decides next week that it doesn't go well with the theme she's trying to create. She returns it (without a receipt) for a full store credit.....in accordance with the policy. From the comments above, it seems everyone would morally approve of this scenario, yes? The store gives a credit for $200 (so they aren't refunding spent money), and they also get back the bedspread (which, by the way, they will then turn around and resell in an *outlet* setting at a discounted price).

Scenario 2: Jane buys the bedspread at Pottery Barn for $200. She decides next week that it doesn't go well with the theme she's trying to create. She knows she can return it for a store credit, but she's tight on cash and a store credit won't help that. If she sells it for less, she can get cash for it. She sells it for $60 to John Smith. John wants the spread and keeps it. (Not much different, by the way, than a tag sale or garage sale, which I'm sure most people would also morally approve of.)

Scenario 3: Jane buys the bedspread at Pottery Barn for $200. She decides next week that it doesn't go well with the theme she's trying to create. She knows she can return it for a store credit, but she's tight on cash and a store credit won't help that. If she sells it for less, she can get cash for it. She sells it for $60 to John Smith. John Smith doesn't want the spread, but he does want something else at Pottery Barn and returns the spread to get the $200 credit.

For some reason, everyone has a problem with this last scenario (which mimics the one described by Mara.) In this last scenario, PB still gives the $200 store credit and still gets the bedspread back. The person who takes a loss is actually Jane......Jane who bought the bedspread and who could get the $200 store credit, but chooses instead to get $60 cash. If she decides that she'd rather have less value but get it in cash, I'm at a loss to see why folks are taking issue with this. The store (PB) is in the same position in Scenario 1 and 3 economically, but it's okay if Jane returns it but not if John returns it? Not sure I follow the logic here.

 

[mm]

But i think the issue is the "jane" buys the spread from the outlet store for $60, and returns it to PB for store credit of $200.

PB presumably never got $200 from the original sale, instead it only got the $60 it made through the outlet sale, and have had to fork out an extra $140.

Yes, it is a flaw in the main store/outlet store system (that they don't mark/alter the outlet product so it can't be returned), but whether you choose to expoit the flaw or not is up for debate here I guess.

 

[Mara]

Well actually I wouldn't be JANE. I'd be John Smith because I never bought the item from the outlet. To be specific.

Also, that is assuming that the eBay seller is buying from the outlet to begin with. Someone may be selling something on eBay that they don't want anymore but paid full price, John Smith snaps it up and decides he doesn't like it, returns for full credit.




But there are also those who do buy from outlets for a buck, sell on eBay to make a huge profit (about 1/2 of retail but 100000% profit). Are they unethical by re-selling on eBay?

What I never quite understood was why the store itself didn't invest in someone to run their eBay store and then they could nix all their outlets and sell for 1/2 retail rather than a few bucks. Maybe because their items cost them pennies on the dollar and they mark them up 10000% for retail, so by selling them in outlets they are more than covering their costs.




You *can* exploit the flaw, quite obviously. What was debated was if it is MORALLY right to do so. Since morals are quite personal and everyone will feel they are ethical or moral in various ways, most will not understand that you do not have to *always* agree with other's morals or ethics in order to get along.

 

[aljdewey]

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On 7/22/2004 1:57:16 AM chialea wrote:





... not that you can infringe on the phonebook in any case, as facts cannot be copyrighted, just to make it more confusing

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Sorry, but that's not correct. Facts themselves are not copyrighted, but the unique arrangement of them IS. It's not the data that's copyrighted, it's the ARRANGEMENT of the data....the way it's expressed. Therefore, yes, it IS possible to infringe on a phone book! That's what all of you are missing.

Copyright isn't protection of an idea.......copyright is different from TRADEMARK, and it's different from PATENT. Yes, all are intellecutal property, but all are distinctly different ......just as apples, oranges and bananas are all fruits but all taste/look different.