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Isabelle

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Date: 3/31/2008 11:38:57 PM
Author: 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.

That''s probably not a bad idea. You can contact your local Bar Association and find out if there is a local IP Bar Association. For example, Houston has HIPLA (Houston IP Law Assn.). Many large cities do have that. Then ask around the Assn. as to who has got relevant expertise in: 1. copyright for artistic designs; AND 2. design patents

That should lead you in the right direction for getting someone to draft an Agreement that you can use/modify when you need to.
 

lyra

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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
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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).
I don''t think WF is wrong in this case. Clearly that ring is a modified 3 Legato head trellis ring. I''ve seen lots of 3 stone rings almost exactly like that except for the heads. WF already had the Legato head in their line up. I don''t see this as much of a stretch, nor particularly unique. JMO. I don''t know about the copyright issues. It''s possible this person said I want something like this, and WF came up with the idea about the heads. The rest of that design is just a 3 sided pave band we''ve seen before.
 

arjunajane

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I think this is a really interesting subject, and that the WF ring is gorgeous and quite individual.
I also think its surprising nobody from WF has weighed in yet...
 

CrookedRock

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Date: 4/1/2008 9:56:55 AM
Author: arjunajane
I think this is a really interesting subject, and that the WF ring is gorgeous and quite individual.
I also think its surprising nobody from WF has weighed in yet...
I agree, and was wondering the same thing. I had this convo with Leon, and he offered to let me copyright my design if I wished, but it would cost much more. So he has said he would like to name it after me, as he does with many of his rings on his site. And I will def take him up on that!
I guess legally I don''t know if WF broke the rules (bc we don''t know all the details), but it certainly bothers me morally...
 

Allison D.

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I''m glad to see this thread come up as a topic of discussion; this issue affects not only companies like our but many of the independent artisans as well, and there''s a great deal of confusion as to what copyright covers.


Ideas aren''t copyrightable; only an original work in a fixed form is eligible for copyright protection. In jewelry design, the ''fixed'' form is often the CAD (or wax). Most commonly, clients use verbal descriptions and pictures of parts they like (i.e. heart-shaped prongs, claw prongs, shank that tapers like this one in the picture). It''s the jeweler''s job to interpret those elements and meld them into a visual rendering he thinks will capture the client’s vision. Often, that finished CAD/wax also exhibits elements that come from bench expertise, such as fluidity and structural integrity.

In most of these instances, it''s the jeweler who interprets the elements and puts them into a fixed form. You could give the same instructions (trellis foundation, heart prongs, gold accented filigree in the basket, three-stone ring with engraved design) to 12 different jewelers, and the pieces they would create would not be carbon copies of each other. Each result would be influenced by that individual jeweler''s interpretation of the elements.

For some more clarity on copyright as it pertains to jewelry design, this is a really good link: http://www.copyright.gov/circs/circ40.html


Several people in this thread have very correctly observed that the terms of the working agreement between parties is critical. For our part here at Whiteflash, we strive for openness and transparency by putting our terms about custom work on our website for all to see.

However, as with most other products and services, terms and pricing are nearly always negotiable if a clients wants something beyond our usual offerings and is willing to bear the cost for it. It’s possible to outline terms that say a design will be exclusive to a single client, but that service will cost a great deal more since we can’t recoup time/labor investment in subsequent offerings.

Most people wouldn''t bear the increased cost for such terms because the agreement only binds the commissioned jeweler; it''s unlikely to prevent others from creating inspired-by pieces, as happened with the ring Brad Pitt designed.

Great topic and great discussion for folks who may ponder the custom process.
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Allison D.

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Date: 4/1/2008 9:56:55 AM
Author: arjunajane
I think this is a really interesting subject, and that the WF ring is gorgeous and quite individual.
I also think its surprising nobody from WF has weighed in yet...
I was actually in the midst of formulating a response as this thread had progressed.

In all honesty, though, I think a general discussion like this (since it''s not only relative to WF) is better served by us not hopping in too soon. It''s very interesting to see the thought everyone has given this topic from many angles.

As I mentioned above, we choose to err on the side of openness and transparency; our standard policies/terms about our custom process are on our website for all to see.....no surprises. They are here: http://www.whiteflash.com/diamonds_info/t/faq.aspx?articleid=70&zoneid=6

If any client wants to discuss modifications to those terms, we''re always open to do so and happy to customize a quote to fit those unique terms.

I''d have to concur with what most others have already said in this thread; there are very few things in jewelry that haven''t been done before. Things like 3-sided pave, trellis settings, heart prongs, claw prongs, filigree, gold accents, etc. are all fairly common elements of jewelry.
 

arjunajane

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Thankyou for taking the time to explain WF''s position Allison.
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strmrdr

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Date: 4/1/2008 10:11:56 AM
Author: Allison D.

I''m glad to see this thread come up as a topic of discussion; this issue affects not only companies like our but many of the independent artisans as well, and there''s a great deal of confusion as to what copyright covers.



Ideas aren''t copyrightable; only an original work in a fixed form is eligible for copyright protection. In jewelry design, the ''fixed'' form is often the CAD (or wax). Most commonly, clients use verbal descriptions and pictures of parts they like (i.e. heart-shaped prongs, claw prongs, shank that tapers like this one in the picture). It''s the jeweler''s job to interpret those elements and meld them into a visual rendering he thinks will capture the client’s vision. Often, that finished CAD/wax also exhibits elements that come from bench expertise, such as fluidity and structural integrity.

In most of these instances, it''s the jeweler who interprets the elements and puts them into a fixed form. You could give the same instructions (trellis foundation, heart prongs, gold accented filigree in the basket, three-stone ring with engraved design) to 12 different jewelers, and the pieces they would create would not be carbon copies of each other. Each result would be influenced by that individual jeweler''s interpretation of the elements.

For some more clarity on copyright as it pertains to jewelry design, this is a really good link: http://www.copyright.gov/circs/circ40.html



Several people in this thread have very correctly observed that the terms of the working agreement between parties is critical. For our part here at Whiteflash, we strive for openness and transparency by putting our terms about custom work on our website for all to see.

However, as with most other products and services, terms and pricing are nearly always negotiable if a clients wants something beyond our usual offerings and is willing to bear the cost for it. It’s possible to outline terms that say a design will be exclusive to a single client, but that service will cost a great deal more since we can’t recoup time/labor investment in subsequent offerings.

Most people wouldn''t bear the increased cost for such terms because the agreement only binds the commissioned jeweler; it''s unlikely to prevent others from creating inspired-by pieces, as happened with the ring Brad Pitt designed.

Great topic and great discussion for folks who may ponder the custom process.
9.gif


Worst case of rationalization that I have heard in a long time.
That''s what custom is all about is having something produced that is not available if there are going too be 5 million copies available then that defeats the purpose for a lot of people.
Its a plain and simple rights grab, just like a tailor claiming the design of a dress is theirs when commissioned by a client to make it from a sketch.
Working from a verbal description would result in joint copyright, but when working from a sketch there is little question that the jeweler has little legal or moral right too the design.
And even if it is legal it isn''t right!
 

strmrdr

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Date: 4/1/2008 8:39:48 AM
Author: Isabelle

Date: 3/31/2008 11:38:57 PM
Author: 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.

That''s probably not a bad idea. You can contact your local Bar Association and find out if there is a local IP Bar Association. For example, Houston has HIPLA (Houston IP Law Assn.). Many large cities do have that. Then ask around the Assn. as to who has got relevant expertise in: 1. copyright for artistic designs; AND 2. design patents

That should lead you in the right direction for getting someone to draft an Agreement that you can use/modify when you need to.
Someone I know is an IP consultant and I asked him for an opinion it will be interesting too hear what he has too say.
 

Allison D.

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Date: 4/1/2008 10:04:24 AM
Author: CrookedRock

I had this convo with Leon, and he offered to let me copyright my design if I wished, but it would cost much more. So he has said he would like to name it after me, as he does with many of his rings on his site. And I will def take him up on that!
I guess legally I don''t know if WF broke the rules (bc we don''t know all the details), but it certainly bothers me morally...
I''m glad to see this example; it''s exactly what I was alluding to above.

Jewelers all have their standard terms of service, but nearly all are willing to deviate from them if you ask and if you can agree upon a price. In your example above, you took the initiative to have the discussion with Leon, and he presented you with possible options based on your wishes.

For a greatly increased cost, you could copyright your design and make it exclusive to you. For a more modest cost, he can create your ring for you and possibly recreate it again later.

Fantastic example, CR!
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Allison D.

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Date: 4/1/2008 10:31:07 AM
Author: strmrdr
Worst case of rationalization that I have heard in a long time.
That's what custom is all about is having something produced that is not available if there are going too be 5 million copies available then that defeats the purpose for a lot of people.
Its a plain and simple rights grab, just like a tailor claiming the design of a dress is theirs when commissioned by a client to make it from a sketch.
Working from a verbal description would result in joint copyright, but when working from a sketch there is little question that the jeweler has little legal or moral right too the design.
And even if it is legal it isn't right!



I think you're confusing intellectual property rights and contract terms, Storm.

Nearly all business relationships are governed by terms of the agreement between both parties, and as long as both parties agree to those terms prior to commencing their relationship, that is *not* a rights-grab. It's a contract between two parties with mutually agreeable terms. It's up to both parties to ensure they have negotiated the terms that they are comfortable with and pricing that they feel is fair for those terms and services.

I'd consider a rights-grab more like a shrink-wrap license, you can't know the terms of use until you open the package, and then you're bound to them or you can't use the software and you cannot return it because it's open. You bought it without knowing the terms in advance.

ETA: I think it's important to note that most jewelers who do custom work aren't even remotely capable of churning out 5 million pieces a year.
9.gif
. Most pieces that result from custom will be far more unique and far less-widely available than more well-known designer pieces by mainstream designers such as Tacori, Simon G., etc.


For those who've never done a custom piece with us, it's important to point out that we don't rely solely on our website to convey our terms and policies. Those are also covered with our clients when we speak to them, and they are also outlined on the order confirmation we provide to clients. I can't speak for all other jewelers, but I can tell you that we don't commence work until we get an approval from the customer on the terms reflected in the order confirmation.

ETA: A final note about custom. In our experience, most people who go the custom route don't do so with the expectation of having a one-of-a-kind piece. The more common reason they choose custom is because they want a combination of elements that isn't available in an existing piece. This was true for me when I was designing a ring; I wanted a three-stone ring with six-prong buttercup heads, heart prongs, and two-tone metal. If I'd have been able to find that locally, I'd likely have purchased it and not gone custom. I went custom to get exactly what I wanted; I wasn't trying to get a piece that no one else would ever have.

I hope this helps folks better understand the custom process.
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strmrdr

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Date: 4/1/2008 10:53:44 AM
Author: Allison D.

Date: 4/1/2008 10:31:07 AM
Author: strmrdr
Worst case of rationalization that I have heard in a long time.
That''s what custom is all about is having something produced that is not available if there are going too be 5 million copies available then that defeats the purpose for a lot of people.
Its a plain and simple rights grab, just like a tailor claiming the design of a dress is theirs when commissioned by a client to make it from a sketch.
Working from a verbal description would result in joint copyright, but when working from a sketch there is little question that the jeweler has little legal or moral right too the design.
And even if it is legal it isn''t right!




I think you''re confusing intellectual property rights and contract terms, Storm.

Nearly all business relationships are governed by terms of the agreement between both parties, and as long as both parties agree to those terms prior to commencing their relationship, that is *not* a rights-grab. It''s a contract between two parties with mutually agreeable terms. It''s up to both parties to ensure they have negotiated the terms that they are comfortable with and pricing that they feel is fair for those terms and services.

I''d consider a rights-grab more like a shrink-wrap license, you can''t know the terms of use until you open the package, and then you''re bound to them or you can''t use the software and you cannot return it because it''s open. You bought it without knowing the terms in advance.

ETA: I think it''s important to note that most jewelers who do custom work aren''t even remotely capable of churning out 5 million pieces a year.
9.gif
. Most pieces that result from custom will be far more unique and far less-widely available than more well-known designer pieces by mainstream designers such as Tacori, Simon G., etc.


For those who''ve never done a custom piece with us, it''s important to point out that we don''t rely solely on our website to convey our terms and policies. Those are also covered with our clients when we speak to them, and they are also outlined on the order confirmation we provide to clients. I can''t speak for all other jewelers, but I can tell you that we don''t commence work until we get an approval from the customer on the terms reflected in the order confirmation.

ETA: A final note about custom. In our experience, most people who go the custom route don''t do so with the expectation of having a one-of-a-kind piece. The more common reason they choose custom is because they want a combination of elements that isn''t available in an existing piece. This was true for me when I was designing a ring; I wanted a three-stone ring with six-prong buttercup heads, heart prongs, and two-tone metal. If I''d have been able to find that locally, I''d likely have purchased it and not gone custom. I went custom to get exactly what I wanted; I wasn''t trying to get a piece that no one else would ever have.

I hope this helps folks better understand the custom process.
1.gif






I''m not confusing anything, this looks and smells like a classic case of a rights grab.
Which is defined as taking advantage of someone thru policy or contract who does not know any better too take their IP.
There is a huge flap going on right now with Adobe doing a rights grab with there new online version of photoshop that created worldwide outrage.

5m is an exaggeration but it doesn''t matter if its 2 or 3 its still wrong.
 

denverappraiser

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A sketch is not a design, it’s a request for a bid. I agree that a jeweler should be clear about what is, and what is not, being contracted for when they agree to accept a particular job on behalf of a client but it usually does not include granting exclusive distribution or manufacturing rights to a particular design concept or element. It could, and if this is your objective by all means you should ask and it’s then up to the jeweler to decide if they want to offer that service and at what price but I think the normal expectation of most clients does not include buying this right and the normal expectation of most jewelers does not include selling it.

There is an industry within the jewelry business of designers who sell or license their designs to manufacturers for mass production and it’s VERY different from a client showing a sketch to a custom jeweler and hiring them to make one. It involves molds, branding rights, promotional participation and other details that are required for successful manufacturing and distribution of a line. This is a considerably different, and considerably more expensive service than the typical custom jewelry store is offering and it’s decidedly not what typical customers are interested in buying.

Neil Beaty
GG(GIA) ICGA(AGS) NAJA
Professional Jewelry Appraisals in Denver
 

strmrdr

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Date: 4/1/2008 12:20:39 PM
Author: denverappraiser
A sketch is not a design,

Neil Beaty
GG(GIA) ICGA(AGS) NAJA
Professional Jewelry Appraisals in Denver
actually the courts in IL have ruled that a sketch is considered a blueprint therefore it would be considered a design here.
This actually came up with a company I used too do work for where someone they had build it from a sketch without formal blueprints tried too steal it. (machine tool industry)
 

LegacyGirl

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I have to say regardless of who is right and who is wrong, I'm so glad we have people from WF to respond. Other than this one instance (where no one really knows what happened, just what another user said) I have been nothing but impressed by the company.

In fact I may or may not be ordering something from WF right now
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Allison thanks for responding!!
 

CrookedRock

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Date: 4/1/2008 10:35:41 AM
Author: Allison D.

Date: 4/1/2008 10:04:24 AM
Author: CrookedRock

I had this convo with Leon, and he offered to let me copyright my design if I wished, but it would cost much more. So he has said he would like to name it after me, as he does with many of his rings on his site. And I will def take him up on that!
I guess legally I don''t know if WF broke the rules (bc we don''t know all the details), but it certainly bothers me morally...
I''m glad to see this example; it''s exactly what I was alluding to above.

Jewelers all have their standard terms of service, but nearly all are willing to deviate from them if you ask and if you can agree upon a price. In your example above, you took the initiative to have the discussion with Leon, and he presented you with possible options based on your wishes.

For a greatly increased cost, you could copyright your design and make it exclusive to you. For a more modest cost, he can create your ring for you and possibly recreate it again later.

Fantastic example, CR!
1.gif
I brought it up with him bc I am one of those people who want a one of a kind piece. We were really glad we did, bc now we understand ahead of time, and it doesn''t become an issue later...

I''m just curious what the extra cost involved in copyrighting a design is really for. I understand that with the WF rings and many others where a wax is made, there has been time spent to input the info into a computer and carve a wax. As far as Leon goes, everything is by hand... And how much exactly are we talking about here? A certain percentage of the cost... 25%? 50%?
 

Isabelle

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Date: 4/1/2008 12:20:39 PM
Author: denverappraiser
A sketch is not a design, it’s a request for a bid. I agree that a jeweler should be clear about what is, and what is not, being contracted for when they agree to accept a particular job on behalf of a client but it usually does not include granting exclusive distribution or manufacturing rights to a particular design concept or element. It could, and if this is your objective by all means you should ask and it’s then up to the jeweler to decide if they want to offer that service and at what price but I think the normal expectation of most clients does not include buying this right and the normal expectation of most jewelers does not include selling it.


There is an industry within the jewelry business of designers who sell or license their designs to manufacturers for mass production and it’s VERY different from a client showing a sketch to a custom jeweler and hiring them to make one. It involves molds, branding rights, promotional participation and other details that are required for successful manufacturing and distribution of a line. This is a considerably different, and considerably more expensive service than the typical custom jewelry store is offering and it’s decidedly not what typical customers are interested in buying.



Neil Beaty

GG(GIA) ICGA(AGS) NAJA

Professional Jewelry Appraisals in Denver

Dovetailing on what you said denver, I think that depending on the person, the interests driving protection will vary. A designer of rings by trade or an inventor of a cut, even if that invention is limited to the design arena, (ie not a utilitarian invention but just to the aesthetics of what is created), will have very different interests and concerns when it comes to copyright protection than the average person who creates a sketch and commissions someone to make it once. I almost wonder if commissioning a piece BY the AUTHOR, FOR the AUTHOR even rises to the level of "publication", particularly if the person commissioning the design was keeping the final ring for him or herself. But assuming it does, it would seem that the customer''s interests in having a one of a kind would be more for sentimental reasons, generally speaking. On the other hand, the reasons driving the designer or the inventor are far more pecuniary in nature, as these rights so directly relate to their livelihood. That is probably what drives Storm''s assessment, since he clearly falls into the latter category, whereas the guy who wanted the ring to be "unique" probably falls into the former. Having said that, as we all I think agree, without question a person can hire someone to create the final product and have an agreement that makes clear the copyright vests in the commissioner of the work, not the creator. But absent a written agreement to this effect, it is very hard to show that.
 

Isabelle

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Date: 4/1/2008 10:53:44 AM
Author: Allison D.
Date: 4/1/2008 10:31:07 AM

Author: strmrdr

Worst case of rationalization that I have heard in a long time.

That''s what custom is all about is having something produced that is not available if there are going too be 5 million copies available then that defeats the purpose for a lot of people.

Its a plain and simple rights grab, just like a tailor claiming the design of a dress is theirs when commissioned by a client to make it from a sketch.

Working from a verbal description would result in joint copyright, but when working from a sketch there is little question that the jeweler has little legal or moral right too the design.

And even if it is legal it isn''t right!





I think you''re confusing intellectual property rights and contract terms, Storm.


Nearly all business relationships are governed by terms of the agreement between both parties, and as long as both parties agree to those terms prior to commencing their relationship, that is *not* a rights-grab. It''s a contract between two parties with mutually agreeable terms. It''s up to both parties to ensure they have negotiated the terms that they are comfortable with and pricing that they feel is fair for those terms and services.







That''s not entirely correct either as an ordinary purchaser without knowledge of the trade or industry is at a distinct disadvantage in understanding the terms of the contract, and the burden is on the retailer to make those terms very clear. It''s in the interests of the merchant to do so anyway because the law doesn''t see consumer/vendor relationships as necessarily *transactions between equals*. The onus is on the vendor to make the terms clear and easy to understand, particularly since most consumers are not lawyers or people who work in the field.
 

strmrdr

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Date: 4/1/2008 3:41:58 PM
Author: Isabelle


That''s not entirely correct either as an ordinary purchaser without knowledge of the trade or industry is at a distinct disadvantage in understanding the terms of the contract, and the burden is on the retailer to make those terms very clear. It''s in the interests of the merchant to do so anyway because the law doesn''t see consumer/vendor relationships as necessarily *transactions between equals*. The onus is on the vendor to make the terms clear and easy to understand, particularly since most consumers are not lawyers or people who work in the field.
Yep that is what I was getting at, the courts are getting very very down on rights grabs by vendors from consumers.
This is getting more and more important as IP is becoming a bigger part of the US economy.
 

Allison D.

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Date: 4/1/2008 3:41:58 PM
Author: Isabelle

Date: 4/1/2008 10:53:44 AM
Author: Allison D.

Date: 4/1/2008 10:31:07 AM

Author: strmrdr

Worst case of rationalization that I have heard in a long time.

That''s what custom is all about is having something produced that is not available if there are going too be 5 million copies available then that defeats the purpose for a lot of people.

Its a plain and simple rights grab, just like a tailor claiming the design of a dress is theirs when commissioned by a client to make it from a sketch.

Working from a verbal description would result in joint copyright, but when working from a sketch there is little question that the jeweler has little legal or moral right too the design.

And even if it is legal it isn''t right!






I think you''re confusing intellectual property rights and contract terms, Storm.


Nearly all business relationships are governed by terms of the agreement between both parties, and as long as both parties agree to those terms prior to commencing their relationship, that is *not* a rights-grab. It''s a contract between two parties with mutually agreeable terms. It''s up to both parties to ensure they have negotiated the terms that they are comfortable with and pricing that they feel is fair for those terms and services.

That''s not entirely correct either as an ordinary purchaser without knowledge of the trade or industry is at a distinct disadvantage in understanding the terms of the contract, and the burden is on the retailer to make those terms very clear. It''s in the interests of the merchant to do so anyway because the law doesn''t see consumer/vendor relationships as necessarily *transactions between equals*. The onus is on the vendor to make the terms clear and easy to understand, particularly since most consumers are not lawyers or people who work in the field.
I agree to a point. I agree that in a vendor/consumer transaction, the vendor (whether jewelry or otherwise) bears a heavier responsibility to make sure the terms of the agreement are clearly communicated and understood. However, that burden is based on the vendor''s understanding of what the individual customer has said he wants *and* what most reasonable average customers want. It doesn''t rise to the level of anticipating scenarios that don''t affect most consumers.

In our model, that means that we need to call specific attention to the elements that we reasonably believe will affect the customer. By example, we need to expressly point out that custom orders aren''t refundable. We need to expressly tell them that a $250 deposit is required prior to beginning a CAD. We need to expressly tell them that making alterations to the design may affect the delivery date. It doesn''t likely mean we should anticipate that a given client expects a never-to-be-recreated design if he''s not expressed such a desire and most reasonable similar clients don''t have that expectation.

Also, while the burden is heavier on vendor than consumer, consumers do still bear some responsibility in the transaction as well. I felt at an extreme disadvantage when I purchased my first home, having never done so before. To offset my lack of experience, I hired my own real estate agent and my own attorney to represent my/hubby''s interests, and I took reasonable time to educate myself about the market and prices and understand what the terms meant.

This is a wonderful discussion, and it certainly has relevance, but we need to keep in perspective that we''re talking about a *very* small subset of clients; the vast majority of custom clients aren''t seeking to be exclusive copyright owners or create one-of-a-kind, doesn''t-even-resemble-anything-else-on-the-market pieces. Those who do want that should specify that in the initial stages of working with vendors and consider the price it might cost to achieve it.
 

Isabelle

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Hi Allison, I agree with 90% of what you wrote. I especially agree with your last paragraph. I don''t think, however, that commissioning a jewelry piece should require an agent or a lawyer to complete in the way a house purchase would. I think you are right that a customer should articulate their interests in outright owning a custom design if they want to do that. But I also think that it is in the vendor''s interests to make clear to the customer that the vendor claims an exclusive right to the design as a matter of course, unless the customer and the vendor make a written agreement to the contrary. If I were a vendor, I would make sure to include that language, particularly if customer''s oftentimes modify designs to make them "special" or "unique".
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Allison D.

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Isabelle, I agree that it shouldn''t be necessary to hire an attorney over a jewelry purchase. I hope you didn''t think I was suggesting that! LOL
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My example was simply meant to show that in a buying situation where I felt disadvantaged and inexperienced, there were things I could do to help mitigate my lack of knowledge. In that specific instance of purchasing a house, it happened to be hiring others who know more about it than I do.

When my (now) husband and I were shopping for diamonds, I knew precious little about them then either. Our course of action was to research and learn enough to help us make a smart purchase. I got great counsel here on PS from others who helped me learn what I needed to know about the importance of cut and the importance of a return policy, etc. That effort on my part helped me be a smart consumer then.

I truly believe that the more information both parties come to the table with and the clearer the communication, the more satisfying the experience for the consumer.
 

iheartscience

Super_Ideal_Rock
Joined
Jan 1, 2007
Messages
12,111
Interesting topic. I think in the specific case being discussed, I agree with lyra in that the design in question didn''t seem like an original design to me, and I posted that in the original thread. There had been several heart basket designs posted recently and his design was just another variation of that design, in my opinion.

I also think that if a customer truly wants a unique design or thinks they are creating a unique design, they should ask for/talk about it with the jeweler ahead of time. I never went into the custom process thinking my design was unique because I knew it wasn''t-it was just a ring with several elements I had seen on a few different rings. Plus I knew that by posting the ring here on PS, anyone could stumble across it and have it reproduced.

Anyways, just my 2 cents on the topic!
 

risingsun

Ideal_Rock
Joined
Dec 19, 2006
Messages
5,549
I think we''ve seen a number of PSers go through the custom process. Many take elements of a number of different designs and combine them to create a design that suits their own style. They are not truly original work. The jeweler and their team translates this into a piece of jewelry. In my mind, this is a collaborative effort. Creating custom work is not the same as creating a one-of-a-kind piece. I think that all parties entering into such an arrangement need to be clear regarding the outcome of this process.
 

Garry H (Cut Nut)

Super_Ideal_Rock
Trade
Joined
Aug 15, 2000
Messages
18,423
The statement on WF website is pretty clear. http://www.whiteflash.com/diamonds_info/t/faq.aspx?articleid=70&zoneid=6

All custom creations we produce become the intellectual property of Whiteflash.

Storm if I trotted out legal documents for every quote etc I would not have any clients and never build relationships with them. I think you are on a high horse with no chance of doing business in many situations if the first thing you do is flash a legal agreement.
As a cut designer you will be able to do that because there is a clear patent process and the work is valued as a specialty.

Us trinket floggers competing in the real world, and with every tom dick and jane thinking their idea was original, it is stoopid to try.

BTW the Brad Pitt original design had been made many years before by the Italian company and was part of their ''line''.
So that was exactly a point in case.
 

strmrdr

Super_Ideal_Rock
Joined
Nov 1, 2003
Messages
23,295
Date: 4/1/2008 8:14:10 PM
Author: Garry H (Cut Nut)
The statement on WF website is pretty clear. http://www.whiteflash.com/diamonds_info/t/faq.aspx?articleid=70&zoneid=6

All custom creations we produce become the intellectual property of Whiteflash.

Storm if I trotted out legal documents for every quote etc I would not have any clients and never build relationships with them. I think you are on a high horse with no chance of doing business in many situations if the first thing you do is flash a legal agreement.
As a cut designer you will be able to do that because there is a clear patent process and the work is valued as a specialty.

Us trinket floggers competing in the real world, and with every tom dick and jane thinking their idea was original, it is stoopid to try.

BTW the Brad Pitt original design had been made many years before by the Italian company and was part of their 'line'.
So that was exactly a point in case.
No high horse, as always I am on the consumers side if it is reasonable and I believe that this is.
I am actually not happy that this turned into being about WF as I was unaware of the incident in question.
I would much rather discuss it in terms of consumers protecting their IP.
WF being involved just clouds the issue.

So as a final warning too my fellow consumers get it in writing and protect you IP if you want too do so!
Do not trust anyone too do the honorable thing when $$$ is involved!
As far as vendors go as knowledge of IP grows expect more and more resistance too rights grabs!
 

CaptAubrey

Brilliant_Rock
Joined
Mar 28, 2004
Messages
863
Boy, I hate coming in late to the good threads.
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Now, with the following caveats:

-I am a copyright lawyer, but no one would confuse me with Melville Nimmer or William Patry (Google either if you're curious)
-Nothing I'm about to say is intended to offer an opinion on the WF sub-issue in this thread

here is what I think.

The real reason most jewelry is not protected by copyright is not because of ambiguity over who owns a custom design but simply because the overwhelming majority of jewelry on the market is simply not original enough to qualify for copyright protection. As several people have noted in this thread, most designs are just combinations of elements that have long been part of the public domain. Now, an original combination of public domain elements can be subject to copyright, but a) it's not automatic--it must be a truly original combination, and b) even if protection exists, it's very narrow: it covers only the precise, original arrangement of public domain elements, not the elements in themselves. Tweak a few of them, and you've likely taken your new design out of the protected area.

A lot of jewelry designers have tried to copyright their designs over the years, but in no almost other field I am aware of does the Copyright Office reject registration as often as with jewelry. Rejection is almost unheard of with literary works and most artistic works, but it seems to happen routinely with jewelry designs. Of the jewelry copyright suits I'm aware of, the designers frequently lose, either on the basis that the designs aren't protectable or that the protection is so narrow that no infringement occurred. David Yurman, for example, is widely known for his attempts to protect his designs through litigation, but he's had mixed success with it (one brief review here).

Rings are an especially difficult case because they're such an ancient form of jewelry, and there are definite limitations in the number of ways you can construct one. For those reasons, very, very few ring designs can be called truly original, and those are almost always the product of visionary designers, not consumers putting together a "custom" engagement ring.

Now, all that said, let's consider a hypothetical case of a custom ring that is indeed original enough to merit protection. In most cases, when two people work together to create a new design, joint authorship exists and both people own the copyright. Either can license or sell the design without permission of the other, and the only responsibility is to share the profits created, if any. However, when one party is commissioning another to create a work, typically the person creating the work will hold sole copyright unless one of two things exist: a) it is the intent of both to share authorship and both contribute protectable elements [joint authorship]; or b) there is a specific, written work-for-hire agreement [sole authorship in the employer].

Thus, a consumer who just brings in some rough ideas, clippings, or drawings of rings, and relies on the designer to bring them to completion--even if s/he makes repeated requests for various modifications--is not going to have any rights to the design absent some other agreement. Only if the consumer has contributed to the original elements of the design does s/he have any chance of making a claim on the copyright, and even then I'd call it an uphill battle.

My advice is that consumers not waste energy worrying about this issue. Only if you're a designer is it something you need to concern yourself with, and in that case, you need to work closely with an IP lawyer and be prepared to shell out a lot of money to defend your designs.
 

Isabelle

Brilliant_Rock
Joined
Feb 15, 2008
Messages
1,113
I think Gary, Storm, and Allison all make really good points. Gary is right that you can overprotect your IP and lose the chance to do business. I said so last night in my long post. Allison is right with all her insight and pointing out the fact that most consumers don''t want to market their idea to others, and don''t expect to control the IP behind the idea. I also agree with her that to one extent or another a diamond ring is a high dollar purchase, and as such the consumer should pay a bit more attention to what they are buying and not just "impulse" purchase. I think Storm looks at this through a different paradigm as he is more of an inventor than a designer, though I''m sure he does some of both. From his perspective, he can throw down an IP agreement and get a lot further down the field than the average jewelry designer b/c he offers a special expertise that few have. INTERESTING conversation all around.

To Storm''s point on WF, I don''t really think the discussion was about WF. The one guy''s complaint on the other thread was just used by someone as an anecdotal point of reference for the general discussion. WF is no different from any other retailer, and to Gary''s point about their claim language, if they are carrying that language prominently on their website, then they are probably doing more than most design firms to alert the public about their ownership of their creations. Speaking for myself, WF is on my very short list of jewelers I would talk to about making me a custom ring if I decided to do it through an online vendor. Their work is BEAUTIFUL and I have heard nothing to make me rethink that. The fact that a top person from their company got on here and discussed/clarified their policies speaks highly of their openness and consumer-oriented point of view. 5 Stars for WF.
 

Dreamer_D

Super_Ideal_Rock
Joined
Dec 16, 2007
Messages
25,251
CaptainAubry, thank you for that post, I learned my new thing for the day it was really really interesting to read!

And Isabelle, thanks for all your insights too. This is such a knowledgable and diverse rgoup here... I try to explain to people that this isn't *just* a diamond forum (as if that isn't enough by itself
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) but it is so hard to capture the fun of a thread like this in a description to others thanks!

Storm, as usual, you started a good one!

And as an aside, Isabelle, Allison's primary job is to represent WF on these boards (please please correct me if I am wrong)... she started as a consumer and forum participant like us (her name was aljdewey) and then replaced the former WF rep in Jan when he moved on (his name was JohnQuixote). ETA: didn't know if you knew that from the way your post was written and noticed you joined after the switcheroo.

DD
 

Isabelle

Brilliant_Rock
Joined
Feb 15, 2008
Messages
1,113
Great post Capt. Aubrey and very illuminating. I am glad to see that I guessed right with the co-authorship and work for hire aspects. (At least they came to me reading some of the fact patterns, which for a TM lawyer, is pretty astounding in and of itself...LOL). I still wondered if a consumer could claim a design to have been published at all if he commissioned the ring to be designed *for himself*, even with such a work for hire Agreement in place? I mean, maybe he could stop them from making it, but wouldn''t that be based more on contract law than copyright since, after all, they made it for him and *he kept it*? Would that rise to the level of publication for purposes of registration? It seems like it wouldn''t. Anyway, you will be interested in this: I did get a whole slew of jewelry designs copyrighted for a client a few years back. I didn''t realize that it was such a triumph until you mentioned it today in your post. We certainly didn''t get any rejections. Having said that, their work was, back then, rather state of the art. Now everyone is doing it. And to your point, I doubt very much they are planning to sue for copyright infringement b/c the smallest of changes can take the new creation outside of the copyrighted work''s domain. Compare that to patent infringement. No wonder copyright is the cheapest of the three forms of IP. :)
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