Who owns the copyright?

[strmrdr]

Very very interesting article.
I posted my 2c :}

http://www.jckonline.com/blog/1020000502/post/70016607.html

Personally I would sue the heck out of someone I hired for duplicating my design if it was unique.
Should we be registering our designs?
I hate the way copyright is implemented right now(that''s another story) but if that''s the way the game is played shouldn''t we the consumer get our chunk?

 

[diamondseeker2006]

This has been covered on here somewhere before. I don''t think you have a claim unless you have legally filed for copyright of the specific design you made.

 

[kelpie]

I have been worried over intellectual property in jewelry for a long time but was afraid to bring it up thinking people would think it''s silly. I want to eventually commission a piece I have in my head, the design of which seems to be totally unique. In which case, does the jeweler retain the right to continue to produce it? Should you pay extra for the right for it to remain one of a kind, and is it out of line to request it? (I think Brad Pitt sued Diamani over this) Do the parties sign a contract which spells these issues out? I know many jewelers post galleries of custom work, so anyone could commission a design originally conceptualized by or for another customer. I would think custom jewelry is considered a "work made for hire" in the 1976 copyright act and thus property of the customer and not the jeweler would made it. However, that does not seem to be the practice if you can look through a jeweler''s custom gallery and have them recreate the design. I''d like to think I''m getting a unique and heirloom piece. Call me jealous but I hate to think that some other person could get one like it just by seeing a picture on a website after I put so much thought into it. Anyone know more about this subject?

 

[strmrdr]

Its an interesting topic keep in mind that contracts can supersede copyright.
Also it wont stop someone from making an "inspired" piece.

From my knowledge of copyright the the making of the design from a sketch would be considered "work made for hire" and you would be the copyright holder.
There might be exceptions however which would make it very interesting.
I can see situations where the copyright might be jointly held which is a mess.
It really depends on how the courts have applied the law.

 

[LegacyGirl]

I know someone on here was just complaining that WhiteFlash is now selling the design he created. They told him he could name it if he wanted to but offered no other compensation. I totally understand how angry that could make someone.

 

[Garry H (Cut Nut)]

Remember that advertising people and people who get photographed as models reserve the rights to their work / image etc, even though they are hired by you the hirer.
It is sooo complex

 

[mrssalvo]

Date: 3/31/2008 9:43:37 PM
Author: LegacyGirl
I know someone on here was just complaining that WhiteFlash is now selling the design he created. They told him he could name it if he wanted to but offered no other compensation. I totally understand how angry that could make someone.

true. makes me also wonder how many well known designers must feel when their designs are being copied and knocked off or closely *inspired* by other jewlers too.

 

[LegacyGirl]

Here is the WF ring. Looks like he named it. It was called Three of Hearts before.

http://www.whiteflash.com/Engagement-Rings/Styles/3Stone/Coeur-de-Clara-Ashley_1164.htm#

 

[LegacyGirl]

Date: 3/31/2008 9:47:48 PM
Author: mrssalvo

Date: 3/31/2008 9:43:37 PM
Author: LegacyGirl
I know someone on here was just complaining that WhiteFlash is now selling the design he created. They told him he could name it if he wanted to but offered no other compensation. I totally understand how angry that could make someone.

true. makes me also wonder how many well known designers must feel when their designs are being copied and knocked off or closely *inspired* by other jewlers too.

I suspect they''re not happy either. There was just something different about this situation that kind of left a bad taste in my mouth with WF, even though they have great customer service.

When you have a big designer, like Tiffany''s, you know your ring will get copied. This was just an ordinary guy, not a celeb or anything, who spent hours creating the perfect design for his FI and then hired someone to actually create the ring and then they go and start selling the design... Legally they may be able to do it but morally I''m surprised they did...

 

[strmrdr]

Date: 3/31/2008 9:54:02 PM
Author: LegacyGirl
Legally they may be able to do it but morally I'm surprised they did...

wow thats dirty too do that.

Is there another thread on it? this is the first I'v heard of it...

 

[Isabelle]

Wow. Interesting. Well, first off I am going to weigh in but I am not a copyright expert. I have practiced law for about 15 years, 10 of those in TM. So be aware I am not speaking as some sort of copyright expert.

First, I would have a good lawyer draft an agreement for all customers and another for all independent contractors that you use that states plainly that you own the design. The customer''s agreement would state that you are the owner of the copyright and they waive all rights to it. Now, this will free you up to reproduce that design for someone else, OR you and your customer can agree that while you are the sole owner of the copyright, you will not reproduce the design. Just make sure that your agreement makes it clear. And remember, once you reduce that agreement to writing, you too are bound by its terms. So it works both ways. The second agreement with the computer programmers would articulate again that you own the IP in connection with the design, including the copyright, that they are doing the work for hire, and that they agree not to distribute, publish, or reproduce it on any media through any outlet without your express written permission. Now let''s say you have the contracts in place and someone violates the copyright anyway? Well this is where it is most helpful to register your design with the US Copyright Office.

By filing for protection with the US Copyright Office, (no matter how long you wait to file for it), you will get the ability to sue in court for infringement and your registration will serve as a public record of your copyright. If you file your designs with the US Copyright Office within three months of "publishing" them; ie making the ring and selling it, then you are entitled to statutory damages in the event of a violation of your copyright. If you do not file for protection within 3 months then you can always file for protection later on, but you won''t get the statutory damages in the event you sue and win for copyright infringement. IOW, you would have to prove actual damages (actual monetary loss)to the court in order to recover any money if you file for protection more than 3 months after publication. You MUST file for a US copyright in order to bring a lawsuit against an infringer for ring designs that are US in origin. So in order to sue in court, you have to have the copyright registered. If you file within 5 years of publication, and you do have to bring a suit, your copyright registration will serve as prima facie evidence that the copyright is valid. "Prima facie" is a term that pretty much means the following: the burden of proof shifts from you over to the person you are suing for infringement with regard to validity. IOW, they would have to show that the copyright isn''t valid in order to prevail.

Of course, you have copyright protection just by creating and publishing a unique work or design. But in order to get most of the statutory protections I outlined above, you have to register the design with the US Copyright Office. Sooner is better for the reasons I discussed above: Within 5 years of publication to get the presumption of validity; within 3 months of publication to get the statutory damages provision to kick in. It costs about $35.00 an application for the US government fees and you can go to www.copyright.gov to download the form VA (b/c jewelery is a visual art) follow the instructions and mail it in with your money. It''s pretty straightforward,-- the registration process, that is. It is the contractual agreements that you need in place to stop the free distribution of your work that can get a little messy if they aren''t done right. Of course, with one of those in place, a person technically couldn''t post pictures of your designs on PS unless you gave your written authorization, so keep that in mind. There is a fine line between protecting your designs and being so protective that no one can see your work, thereby hamstringing your company''s growth and/or your reputation as a designer.

Another thing to consider if a design is particularly groundbreaking is to also apply for a design patent. But design patent protection is quite different from copyright protection. For one thing, with a copyright registration, you file for protection after you publish the work: You file for protection AFTER you make it and sell it, or AFTER you make it and give it away, or AFTER you make it and lend it to someone, whichever of these comes first. Conversely, with a design patent, you need to file for patent protection BEFORE you sell it, distribute it, give it away. The key here is to definitely hire a patent lawyer who specializes on design work very early on and before you are ready to start putting the design into the stream of commerce.
Caveat: It is worth repeating: I am NOT a copyright expert nor am I a patent attorney. Any TM questions you have though, feel free to fire away. LOL

 

[mrssalvo]

Date: 3/31/2008 10:04:15 PM
Author: strmrdr


Is there another thread on it? this is the first I'v heard of it...

there is, i'll see if i can find it...

ETA: here ya go storm...
https://www.pricescope.com/community/threads/three-of-hearts-wf-my-fiances-ring.78854/

 

[LegacyGirl]

Isabelle thank you soooooo much for all the great information!

 

[LegacyGirl]

Date: 3/31/2008 10:11:53 PM
Author: mrssalvo

Date: 3/31/2008 10:04:15 PM
Author: strmrdr


Is there another thread on it? this is the first I''v heard of it...

there is, i''ll see if i can find it...

ETA: here ya go storm...
https://www.pricescope.com/community/threads/three-of-hearts-wf-my-fiances-ring.78854/

Thanks for finding it MrsS!

 

[Isabelle]

Date: 3/31/2008 10:04:15 PM
Author: strmrdr

Date: 3/31/2008 9:54:02 PM

Author: LegacyGirl

Legally they may be able to do it but morally I''m surprised they did...

wow thats dirty too do that.


Is there another thread on it? this is the first I''v heard of it...

I''m not so sure that it is all that cut and dry that what they did was legal. He has a pretty strong argument to make that they did that work as a collaborative venture and that they both equally own the copyright, assuming it was his design. He might even be able to argue that they did the work for hire if they had some email exchanges that made it clear that it was his design and he owned it. And to that end, a written email exchange articulating who owns the design after they made it would have taken care of this, and protected both parties. Too bad things in the real world are usually not done "by the book" so to speak.

 

[strmrdr]

Date: 3/31/2008 10:11:53 PM
Author: mrssalvo

Date: 3/31/2008 10:04:15 PM
Author: strmrdr


Is there another thread on it? this is the first I''v heard of it...

there is, i''ll see if i can find it...

ETA: here ya go storm...
https://www.pricescope.com/community/threads/three-of-hearts-wf-my-fiances-ring.78854/

thats flat out wrong.

 

[LegacyGirl]

Date: 3/31/2008 10:19:47 PM
Author: Isabelle

Date: 3/31/2008 10:04:15 PM
Author: strmrdr

Date: 3/31/2008 9:54:02 PM

Author: LegacyGirl

Legally they may be able to do it but morally I''m surprised they did...

wow thats dirty too do that.


Is there another thread on it? this is the first I''v heard of it...

I''m not so sure that it is all that cut and dry that what they did was legal. He has a pretty strong argument to make that they did that work as a collaborative venture and that they both equally own the copyright, assuming it was his design. He might even be able to argue that they did the work for hire if they had some email exchanges that made it clear that it was his design and he owned it. And to that end, a written email exchange articulating who owns the design after they made it would have taken care of this, and protected both parties. Too bad things in the real world are usually not done ''by the book'' so to speak.

Isabelle I''m pretty sure what you agree to with WF is that they own the design. I don''t think he realized this as it''s on their website or something. I''m not saying that I know it was legal or not, I''m just assuming it was because I don''t think WF would do it if it wasn''t and open themselves up to that liability.

 

[Isabelle]

Date: 3/31/2008 10:25:03 PM
Author: LegacyGirl

Date: 3/31/2008 10:19:47 PM

Author: Isabelle

Date: 3/31/2008 10:04:15 PM

Author: strmrdr

Date: 3/31/2008 9:54:02 PM


Author: LegacyGirl


Legally they may be able to do it but morally I''m surprised they did...

wow thats dirty too do that.



Is there another thread on it? this is the first I''v heard of it...

I''m not so sure that it is all that cut and dry that what they did was legal. He has a pretty strong argument to make that they did that work as a collaborative venture and that they both equally own the copyright, assuming it was his design. He might even be able to argue that they did the work for hire if they had some email exchanges that made it clear that it was his design and he owned it. And to that end, a written email exchange articulating who owns the design after they made it would have taken care of this, and protected both parties. Too bad things in the real world are usually not done ''by the book'' so to speak.

Isabelle I''m pretty sure what you agree to with WF is that they own the design. I don''t think he realized this as it''s on their website or something. I''m not saying that I know it was legal or not, I''m just assuming it was because I don''t think WF would do it if it wasn''t and open themselves up to that liability.

That''s why I say that it is better to make that clear and in writing from the outset. And to your point, I would surprised if a large retail designer of rings does not have some language that the customer agrees to in the contract. If they don''t, they need to get it in there ASAP.

 

[LegacyGirl]

Yeah it''s one of those things where I think they did and he just didn''t realize what he agreed too

That''s why I read everything I sign. I can''t believe the number of people who don''t (not applying that to this situation, just in general).

 

[strmrdr]

Date: 3/31/2008 10:32:27 PM
Author: LegacyGirl
Yeah it''s one of those things where I think they did and he just didn''t realize what he agreed too

That''s why I read everything I sign. I can''t believe the number of people who don''t (not applying that to this situation, just in general).

The courts have been throwing online rights grabs out for that very reason, also saying something else in email can supercede any policy on the website.
If he wishes too pursue it he has a case I think.

 

[Isabelle]

Date: 3/31/2008 10:32:27 PM
Author: LegacyGirl
Yeah it''s one of those things where I think they did and he just didn''t realize what he agreed too

That''s why I read everything I sign. I can''t believe the number of people who don''t (not applying that to this situation, just in general).

If they had it in there, and not in tiny print, but in a nice sized legible font, and he missed it, then he is lucky they let him name the ring. If the Agreement was clear then what they did was a nice gesture. Also a smart thing to do, b/c the truth is, few people want to sue or be sued over an IP dispute. It''s too costly. It''s almost always better to make a compromise. IP lawsuits are the most expensive lawsuits there are. They can cost upwards of $500,000.00 *on the low end*, and the sky''s the limit on the high end.

 

[Isabelle]

Date: 3/31/2008 10:37:08 PM
Author: strmrdr

Date: 3/31/2008 10:32:27 PM

Author: LegacyGirl

Yeah it''s one of those things where I think they did and he just didn''t realize what he agreed too

That''s why I read everything I sign. I can''t believe the number of people who don''t (not applying that to this situation, just in general).

The courts have been throwing online rights grabs out for that very reason, also saying something else in email can supercede any policy on the website.

If he wishes too pursue it he has a case I think.

If it is just boilerplate on the website and not in a contract that he signed, in a nice legible font in wording that an average person could understand, then I think Storm is right. If it was as Legacy described, and he signed an Agreement and it was clear what he was signing, then he probably has little recourse. And then, even if he IS right, the problem is that it costs SO MUCH MONEY to bring a claim for infringement. So few people have the resources to do it.

 

[LegacyGirl]

Again I''m not 100% sure if an agreement was signed or if it was just on their website.

He hasn''t posted lately, I hope he comes back and lets us know what happens.

 

[Missrocks]

Date: 3/31/2008 10:37:48 PM
Author: Isabelle

Date: 3/31/2008 10:32:27 PM
Author: LegacyGirl
Yeah it's one of those things where I think they did and he just didn't realize what he agreed too

That's why I read everything I sign. I can't believe the number of people who don't (not applying that to this situation, just in general).

If they had it in there, and not in tiny print, but in a nice sized legible font, and he missed it, then he is lucky they let him name the ring. If the Agreement was clear then what they did was a nice gesture. Also a smart thing to do, b/c the truth is, few people want to sue or be sued over an IP dispute. It's too costly. It's almost always better to make a compromise. IP lawsuits are the most expensive lawsuits there are. They can cost upwards of $500,000.00 *on the low end*, and the sky's the limit on the high end.

I am familiar of a case where a "no-name" designer pursued a suit against a "big name" designer (very well know actually) copied his design. He tried to pursue the case and finally gave up because he ended up broke. So sad...

I have designed a few (of what I know to be) original pieces and feel that a copyright would almost be pointless. I wouldn't even have the chunk change to argue with anyone who decided to rip it off.

 

[strmrdr]

Date: 3/31/2008 10:55:49 PM
Author: Missrocks

Date: 3/31/2008 10:37:48 PM
Author: Isabelle

Date: 3/31/2008 10:32:27 PM
Author: LegacyGirl
Yeah it''s one of those things where I think they did and he just didn''t realize what he agreed too

That''s why I read everything I sign. I can''t believe the number of people who don''t (not applying that to this situation, just in general).

If they had it in there, and not in tiny print, but in a nice sized legible font, and he missed it, then he is lucky they let him name the ring. If the Agreement was clear then what they did was a nice gesture. Also a smart thing to do, b/c the truth is, few people want to sue or be sued over an IP dispute. It''s too costly. It''s almost always better to make a compromise. IP lawsuits are the most expensive lawsuits there are. They can cost upwards of $500,000.00 *on the low end*, and the sky''s the limit on the high end.

I am familiar of a case where a ''no-name'' designer pursued a suit against a ''big name'' designer (very well know actually) copied his design. He tried to pursue the case and finally gave up because he ended up broke. So sad...

I have designed a few (of what I know to be) original pieces and feel that a copyright would almost be pointless. I wouldn''t even have the chunk change to argue with anyone who decided to rip it off.

yea the media would be the best bet.
I bet 20/20 would be interested.

 

[Dreamer_D]

Just an aside about the specific isssue of the three of hearts design-- all we have is his word that he designed the ring without any other information than his POV. I don''t think we should draw firm conclusions without all the facts. I know that when I am working with a student to come up with research ideas, the student may think they originated the idea, but really it was careful questioning and guidance on my part that led them to the hypothesis. So who really came up with the idea?

Not saying he didn''t come up with the design on his own, not saying he did. Just saying we don''t know all the facts.

The more general discussion is really interesting though and definitely important to consider if we are getting custom pieces made.

DD

 

[Isabelle]

I agree with dreamer. There are too many unknown facts to draw a conclusion. You could have one guy as sole owner or you could have co-owners from a legal sense. See why no one wants to litigate over these things? No clear answer, usually.

 

[LegacyGirl]

Date: 3/31/2008 11:17:28 PM
Author: Isabelle
I agree with dreamer. There are too many unknown facts to draw a conclusion. You could have one guy as sole owner or you could have co-owners from a legal sense. See why no one wants to litigate over these things? No clear answer, usually.

Sounds like a giant PITA and I''m so glad to be doing Bankruptcy law and not this stuff

 

[Dreamer_D]

Date: 3/31/2008 11:20:19 PM
Author: LegacyGirl

Date: 3/31/2008 11:17:28 PM
Author: Isabelle
I agree with dreamer. There are too many unknown facts to draw a conclusion. You could have one guy as sole owner or you could have co-owners from a legal sense. See why no one wants to litigate over these things? No clear answer, usually.

Sounds like a giant PITA and I''m so glad to be doing Bankruptcy law and not this stuff

And I''m glad I''m not in law at all! We argue about authorship occasionally, but with no money involved, somehow it seems less meaningful... although students do sometimes get upset when they don''t get higher billing than they THINK they deserve. Interestingly, the students who think they deserve more credit are often the ones who needed the most help and guidance to come up with "their" ideas in the first place...

 

[strmrdr]

It does point out one thing consumers need too pay attention and I will be getting a written contract on any unique work I have done spelling it out and preserving my rights.