Who owns the copyright?

[strmrdr]

capt my buddy said the same thing you did almost exactly.

He feels that barring any contract (policy would have too be fought about in court) that someone saying here is my design make it would likely qualify as a work for hire where jointly working on a design would at best be joint and a case could be made that the jeweler owns the design.
His final words are get a contract! and if its an important and unique design get a design patent!

 

[kelpie]

It does not matter if the customer designed the ring or if the jeweler designed it 100%, if the piece is custom requested by the customer and the elements of the design are outside the jeweler's common catalog of offerings, then I believe under the copyright act of 1976 it is a work made for hire and the design becomes property of the customer. Obviously contracts can and often do supersede this. I want to know if jewelers typically have customers sign or acknowledge in a contract that all designs remain property of the jeweler. Depending on what state you're in, T&Cs buried in a website that you don't ever even have to see may not hold up. Looking at WF's T&Cs they say the customer agrees to indemnify them, you think a court would ever uphold that?

I do think it's a shame that a customer is expected to pay extra that a piece remain unique when that is often their goal in getting a custom design in the first place. It seems to me that is reasonably already part of the premium associated with getting something custom. I think a customer would be pretty crazy to copyright a design they didn't want to sell, but what's wrong with wanting assurance from the jeweler that they wont add it to their catalog or they will modify the design in some way if another customer wants it? If you look at the truly great artists of jewelry they would have been insulted at the suggestion that they might mass produce a special piece (and I'm not talking modified trellis rings here). I'm sure Lalique only made one of these:

 

[The Mole]

LOL!!

I can see it now.

A customer comes into a jewelry store and says "I want to make a custom ring and be the copyright holder."

Jeweler: "Great! Have a seat! I will need our copyright department to approve your designs, as I have been in business for 30 years and need about 6 months to study all the other designs I have ever made and make sure that they do not bear any similarities to the piece that you envision, and make sure that any of my other IP holding customers will not sue me!"

Customer: "Great let me know in 6 months then if we can proceed."

It would be a sad state for the industry if this was a reality. I also think that there would be no jewelers left who would willingly custom make a ring for you knowing that if they ever made another design too similar to yours there could potentially be litigation.

Could you then copyright a design *element* such as a crown?

 

[risingsun]

The Lalique piece and others of such artistic merit were designed and executed by the artist and his own benchmen. The items in question [in this thread] are not works of art, they are pieces of jewelry containing elements from different designers. The WF policies were clearly stated on their website and the customer has some responsibility for understanding the terms of service. If I buy original art, I am permitted certain expectations. If I buy a limited edition print, my expectations are different. If I buy a poster of the same painting, I am not entitled to any exclusivity.

 

[CaptAubrey]

Date: 4/1/2008 9:28:10 PM
Author: Isabelle
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.

You're halfway correct. A work is not "published" for copyright purposes if there is only one copy that is never duplicated or distributed. However, publication is no longer a prerequisite for registration. It's not like trademark law where the mark has to be used consistently in commerce. I can register the copyright in a manuscript I keep locked in my safe deposit box until after my death, and it's still protected.

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.

I didn't mean to suggest that getting a jewelry design registered was a triumph exactly, just that registrations for jewelry designs seem to get rejected more often than anything else, which is to say, they get rejected at all. For other classes like literary works, rejection on the basis that the work isn't protectable (rather than, say, filling the forms out incorrectly--don't get me started on that one), is almost unheard of.

Indeed, patent law is a whole different animal.

I know enough about it to be glad I'm not a patent lawyer.

Date: 4/1/2008 9:49:56 PM
Author: kelpie
It does not matter if the customer designed the ring or if the jeweler designed it 100%, if the piece is custom requested by the customer and the elements of the design are outside the jeweler's common catalog of offerings, then I believe under the copyright act of 1976 it is a work made for hire and the design becomes property of the customer. Obviously contracts can and often do supersede this.

No, I'm afraid this is 100% incorrect. A point of clarification here, which I need to make because nearly all of my copyright experience is with literary works, where work for hire agreements are routine. I handle very little in the way of "scuptural works" (the class where jewelry falls into). There's a reason I couldn't recall having dealt with a work-for-hire agreement for a scuptural work: the law doesn't allow for it. That is to say, you could draft such an agreement trying transfer rights in the design to the customer, and wouldn't matter or be enforceable. This is the legal definition for works made for hire (note highlighted portion):

A “work made for hire” is —

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

So, essentially, the jewelry designer is going to own the design (assuming it's even protectable) unless the customer in fact is a partner in creating the copyrightable elements.

 

[strmrdr]

Capt, would you agree that making something from a blueprint transfers no rights?
In the machine tool area it does not and a sketch has been ruled a blueprint.

 

[Garry H (Cut Nut)]

Date: 4/1/2008 9:28:10 PM
Author: Isabelle
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.

Thanks Capt and Isabelle for the great knowledge.

Isabelle it does seem to be a waste of time to use copyrights for jewellery designs based on your clients experiance - and while I learned some stuff here, it seems my original arguements with Storm too are more and a little less correct.

One stone we left unturned is the name you give something. by simply naming a design with as many variants as possible, in some form of written communication, Aur could have used literal copyright to protect his design if WF or others choose to use the same name. True? It is not guaranteed to work, but is free and has a chance with limited legal fees.

 

[Garry H (Cut Nut)]

To be sure of no one copying your custom designed ring make it ugly and uncomfortable to wear

 

[strmrdr]

Date: 4/2/2008 2:43:06 AM
Author: Garry H (Cut Nut)
To be sure of no one copying your custom designed ring make it ugly and uncomfortable to wear

hiring hitmen is more fun :}
A few busted kneecaps always sends a message.
Or maybe hire some 3rd graders: https://www.pricescope.com/community/threads/3rd-graders-plan-too-attack-teacher.82217/
j/k of course :}

 

[diagem]

Date: 4/1/2008 9:49:56 PM
Author: kelpie
It does not matter if the customer designed the ring or if the jeweler designed it 100%, if the piece is custom requested by the customer and the elements of the design are outside the jeweler''s common catalog of offerings, then I believe under the copyright act of 1976 it is a work made for hire and the design becomes property of the customer. Obviously contracts can and often do supersede this. I want to know if jewelers typically have customers sign or acknowledge in a contract that all designs remain property of the jeweler. Depending on what state you''re in, T&Cs buried in a website that you don''t ever even have to see may not hold up. Looking at WF''s T&Cs they say the customer agrees to indemnify them, you think a court would ever uphold that?

I do think it''s a shame that a customer is expected to pay extra that a piece remain unique when that is often their goal in getting a custom design in the first place. It seems to me that is reasonably already part of the premium associated with getting something custom. I think a customer would be pretty crazy to copyright a design they didn''t want to sell, but what''s wrong with wanting assurance from the jeweler that they wont add it to their catalog or they will modify the design in some way if another customer wants it? If you look at the truly great artists of jewelry they would have been insulted at the suggestion that they might mass produce a special piece (and I''m not talking modified trellis rings here). I''m sure Lalique only made one of these:

Oooops..., I found another one..., or maybe it is just that one...

Can anyone advice?

 

[Isabelle]

Captain, What is your view on the following hypothetical: customer comes in with a full sketch of a design, including views of how item will look from different angles, etc., almost rising to the level of blueprint. He specifies the medals to use, the type of prongs, going into great detail, and gives the jeweler a "Work for Hire" agreement articulating that authorship vests in the customer for purposes of copyright and reproduction. Can the customer not rightfully file for copyright protection? What is your view on whether the terms of that Agreement would be enforceable in the abstract? If your assessment is that the customer still has no valid copyright, do you believe that the jeweler is free to reproduce the item even though he contracted that right away? Thank you for your insight!

My point on the patent infringement side was simply that if a minor change to a patented item can constitute patent infringement, whereas a minor change to a copyrighted item can be enough to be considered a new expression of the same idea. The standards are rather different in terms of infringement. As to the issue on publication for registration, I say: "Ay, Ay, Capt." LOL

This shows why I will happily stay within my own realm of expertise, which brings me to...GARY...

Gary, you bring up an interesting point. The name you use to sell jewelry, or the name you give a design of jewelry would not be considered a literary aspect of copyright. Copyright does not protect names of items or slogans. This falls squarely within the realm of trademark protection. In order for our hypothetical customer to have a valid trademark, he has to use the mark to sell rings. So if he commissioned the production of several rings and sold them under the mark LEGACY, for example, he would have common law protection in his geographic area of use against anyone else who came around later on and sold rings under a confusingly similar mark. If he federally registered the term, then he would be protected in the entire US against later users or filers. But this only protects the name of the rings, and this protection presupposes that the customer is selling rings in commerce under the mark. Having one ring designed for personal use would not rise to the level of "use in commerce". So how can the customer protect the design of the ring itself? My guess based on Capt''s comments is that he needs a contractual right for that. Either that or make the jeweler who crafts the ring his employee so there is no question that the copyright vests in the customer. (Guffaw). This is probably why a smart designer will go in the direction of getting a design patent. Designs of items protected by a design patent don''t have to be made or sold to be protected. If a customer really wanted to keep the jeweler from reproducing the exact ring, he would go get a design patent on the design FIRST and then give them the design to make. That would preclude them from infringing on the protectable elements of the design, and the fact that he never created the ring would be immaterial. But what customer is going to spend $5K or $10K getting a design patent on the protectable elements of a ring?! LOL A designer, yes. Customer? Hard to envision.

 

[Isabelle]

Date: 4/2/2008 6:11:53 AM
Author: DiaGem

Date: 4/1/2008 9:49:56 PM

Author: kelpie

It does not matter if the customer designed the ring or if the jeweler designed it 100%, if the piece is custom requested by the customer and the elements of the design are outside the jeweler''s common catalog of offerings, then I believe under the copyright act of 1976 it is a work made for hire and the design becomes property of the customer. Obviously contracts can and often do supersede this. I want to know if jewelers typically have customers sign or acknowledge in a contract that all designs remain property of the jeweler. Depending on what state you''re in, T&Cs buried in a website that you don''t ever even have to see may not hold up. Looking at WF''s T&Cs they say the customer agrees to indemnify them, you think a court would ever uphold that?


I do think it''s a shame that a customer is expected to pay extra that a piece remain unique when that is often their goal in getting a custom design in the first place. It seems to me that is reasonably already part of the premium associated with getting something custom. I think a customer would be pretty crazy to copyright a design they didn''t want to sell, but what''s wrong with wanting assurance from the jeweler that they wont add it to their catalog or they will modify the design in some way if another customer wants it? If you look at the truly great artists of jewelry they would have been insulted at the suggestion that they might mass produce a special piece (and I''m not talking modified trellis rings here). I''m sure Lalique only made one of these:

Oooops..., I found another one..., or maybe it is just that one...

Can anyone advice?

LOL! I have a book of Tiffany Gemstones in which a museum piece bracelet was made for a French Empress (the surviving child of Marie Antoinette). It was rubies and diamonds and it now resides in the Louvre I think. There is a guy on the Gem Shopping Network who sells copies of that bracelet every few months. He always asks about $20K for the reproduction. I saw last week he was offering the same design with sapphires. Of course, the copyright would have long since lapsed in that case. But without question, important designs are reproduced. When a copyright is in place, a design shouldn''t be outright copied but they oftentimes are. I am going with a friend of mine to get an appraisal on her new 8 carat sapphire ring sitting in a Legacy type setting today. (Not an exact reproduction, but similar). Just by way of anecdotal example.

 

[CaptAubrey]

Date: 4/2/2008 1:39:49 AM
Author: strmrdr
Capt, would you agree that making something from a blueprint transfers no rights?

In the machine tool area it does not and a sketch has been ruled a blueprint.

It''s going to depend on how specific the drawing/blueprint is, and whether it clearly describes protectable material. A consumer who comes in with a CAD drawing of ring that a jeweler executes without a lot of changes will surely retain some rights, such as they exist. A rough sketch is likely a different matter. In the case you''re referring to, my guess is that the sketch indeed described protectable ideas clearly enough to qualify as fixation for copyright purposes.

Date: 4/2/2008 10:54:50 AM
Author: Isabelle
Captain, What is your view on the following hypothetical: customer comes in with a full sketch of a design, including views of how item will look from different angles, etc., almost rising to the level of blueprint. He specifies the metals to use, the type of prongs, going into great detail, and gives the jeweler a ''Work for Hire'' agreement articulating that authorship vests in the customer for purposes of copyright and reproduction. Can the customer not rightfully file for copyright protection? What is your view on whether the terms of that Agreement would be enforceable in the abstract? If your assessment is that the customer still has no valid copyright, do you believe that the jeweler is free to reproduce the item even though he contracted that right away? Thank you for your insight!

Some more clarification. While a work-made-for-hire agreement would not fly for a scuptural work, there is nothing preventing the client and jeweler from contractually agreeing that the jeweler transfers any and all rights to the design to the consumer upon delivery. This is in fact a typical boilerplate clause in work for hire agreements, i.e. "Should this agreeement be deemed not a valid work made for hire agreement, designer does hereby transfer all right, title, and interest in the design..." etc. That taken care of, the consumer owns the copyright and can register the design without futher ado. I would have mentioned this last night, but it was late and I was tired.

(Whether the average designer would agree to such an arrangement is a different matter, of course.)

Again, though, if the consumer is the one who comes up with the protectable ideas, and fixes them in tangible form (e.g., a detailed sketch), then my guess is that you would have a joint ownership situation in the final ring.

But of course, the specific facts of the case would determine the final answer. Don''t you just love law practice?

 

[niceice]

The challenge is that practically every concept is "inspired" by another concept... I took a look at the ring in question and here is what I thought within 3 seconds... The Tacori Serendipity Collection features several rings with hearts in the side profile of the bridge. Tacori style #11014 and #11010S both have three hearts in the side profile of the bridge, these designs were created in 1997. Michael Beaudry and Varna have also offered designs with the "3 Hearts" concept since 1997 - 1998.

The trellis concept has been around for quite awhile, but D. Vatche made it popular several years ago and practically every designer offers a version of it today.

Nothing special or unique about the pavé in the shank...

The concept behind this ring could have been expressed to a custom jeweler like this: "I'm looking to make a custom ring. I really like the Trellis design of this D. Vatche ring (300 series Truffle) but I want hearts between the prongs, like in this Tacori ring (pick one from above) and I'd like it to have diamonds in the shank, like this ring from the D. Vatche Cotillion Collection (style #137-23"

The one thing that I've realized over the years is that there are very few things that can truly be considered "custom". Most of the rings that clients have presented to me as "custom" are an assembly of parts, or something that I recognized from a catalogue. Perhaps it is the number of diamonds set in the side of the ring that makes it a custom? I see no originality in the concept of the ring presented as evidence, I merely see a collage of concepts not unlike anything I have seen before...

Note: somewhere in Hong Kong, some guy in a jewelry factory is probably knocking off the "3 of Hearts" right now. Welcome to the industry

 

[WinkHPD]

Date: 4/2/2008 4:26:53 PM
Author: niceice



Note: somewhere in Hong Kong, some guy in a jewelry factory is probably knocking off the ''3 of Hearts'' right now. Welcome to the industry

LOL! I remember last year at JCK. Vatche introduced the Swan and the Sisley rings that Irina designed and gave to them. I was standing there admiring the rings and the huge poster behind them when a well known designer''s employee came over and started snapping pictures of the rings and of the poster. Vatche just looked at him and commented that "This (expletive deleted) is just taking pictures so they can rip off this design for next year''s sale, that is how they get all of their so called designs."

Wink

 

[niceice]

Date: 4/2/2008 5:49:10 PM
Author: Wink

LOL! I remember last year at JCK. Vatche introduced the Swan and the Sisley rings that Irina designed and gave to them. I was standing there admiring the rings and the huge poster behind them when a well known designer''s employee came over and started snapping pictures of the rings and of the poster. Vatche just looked at him and commented that ''This (expletive deleted) is just taking pictures so they can rip off this design for next year''s sale, that is how they get all of their so called designs.''

Wink

Hey I think I know that guy! I was at the Daniel K booth in 2004 and there was a knock-off company out of Hong Kong exhibiting at the next booth... There were posters of depicting various designer settings (including those of Daniel K which was kind of entertaining) plastered all over their booth and each one had the caption "Why pay designer prices?" and my first thought while holding one of the pieces was "because these aren''t designer quality". But alas, I''m a bastard, I purchased one of their Tacori knock-off''s and dropped it into Paul Tacorians'' hand at the show and told him that I thought his quality was slipping... The weight was wrong, the diamonds were set all crooked, it was a typical overseas knock off (people i the trade will know what I''m referring to here) and Paul looked stunned when he learned of how blatant the company was being about their promotion of his designs... In fact, we could have made a MasterCard television commercial out of the moment... "Hotel Room $$$, Meals $$$, Entrance to the Show (free) but $$$ for the sake of the ad, Buying a Tacori knock off $$$, the look on Paul Tacorians'' face - Priceless - but I think the knock off company got sued because Tacori does hold a copyright on their design

 

[Isabelle]

Date: 4/2/2008 3:26:03 PM
Author: CaptAubrey

But of course, the specific facts of the case would determine the final answer. Don''t you just love law practice?

LOL, yes. But I also dream of one day being a jeweler. LOL Enjoyed your insight and I agree with your views on the contract issues.

 

[Harriet]

Isabelle, Capt,
I have nothing to contribute here (unless copyrighting has tax consequences!), but many thanks for the legal education.

 

[Pandora II]

I''ve had a lot of my textile designs ripped-off in the past.

I was pretty annoyed at first, but as long as there are enough differences there''s not much you can do. I had a few people call me to say they''d seen my work in magazines etc and then I''d look and find they''weren''t mine, they looked identical but they''d just changed a few details...

As far as one off pieces are concerned, I wouldn''t be bothered at all if someone recreated something a couple of times, but I''d be pretty angry if I saw a poor quality version being sold on QVC in the hundreds!

 

[Aur]

Whiteflash sent me an email recently about some additions to their online catalogue. I remembered that I had been sharing my experiences here on pricescope.

Ever since she said yes, we''ve been real busy. I can''t believe it is June.

I apologize if anybody wanted to bury this topic, but I think it is a very necessry discussion and great topic. My absence was partially because of this situation. I thought talking it out on the forum would be a great remedy to what ailed me, but there were some comments that just didn''t help the situation. Thus, a quite needed break from trolling/posting on the forums.

Just to touch on certain points of the discussion, I hadn''t just picked elements from a bunch of different settings and then said "make it". Although I won''t deny that some elements were chosen like this, I did want and make subtle changes to them. I had an idea of a basket design, to which was hard to explain, but easier for me to make a simple CAD drawing illustrating what I wanted, this was sent to WF. I got pretty picky (thanks to the forums) I had even specified at one point in time that the "V" shape in the basket ideally would start immediately after the bottom of the diamond. Just so you could actually see the point on the end of the diamond from side view.

I do have all the conversations, files and documentation between WF and myself during the process. I feel at this point its unnecessary for me to dig this up and beat the dead horse even more. Whether or not it would merit any "legal" issues. I never want it to escalate to that level, though I requested that it be respected on a personal/moral level. But hey its business....right?..right? To touch on a point where someone said you pay the "premium" for custom work and then it is produced and available for the masses. I do find it rather weird that I end up paying a much higher price for Coeur de Clara Ashley than anybody ever would now. (No need to explain the design process, as I am familiar with such in a different industry)

To others commenting on the contract of such, there were no such words any of hte paperwork that I signed that had touched on who had the "rights" to the design. Transparency is something to be spoken for, but to a person highly disadvantaged during the process (first time ring purchase/custom work) EVERYTHING should be presented on the table. If someone didnt''t want to spend the time reading paper work and details, they probably don''t want nor care for the customization process.

To individuals that had said that their design clause is displayed on their website and that means WF owns the design , I personally believe that is false. If I were to open a website stating something it does not mean the user agrees with all of the stated. I would think it HAS to be in writing or a person had to physically hit a mouse/keyboard to affirm agreement to terms. Being an engineer, law isn''t quite my forte.

My advice to everyone getting custom pieces done. GET IT IN WRITING and DISPUTE THE TERMS BEFORE THE EXCHANGE OR CREATION OF IDEAS OR PRODUCT.

 

[purrfectpear]

For a guy that didn''t want to bring this up again, or "beat a dead horse" why the heck did you bother to dredge this back up? Those that agree with you probably still do, and those like myself who think you are wrong and surprised you''re still whining probably still hold that view.

 

[diamondkrazy]

I usually lurk her but one of the things I get annoyed about is when people post about a problem they have with a vendor but never come back to post a follow up what happened with the vendor. I learned a lot reading this thread and appreciate when someone does post a follow up. I think saying someone is whining is out of line with the helpful nature of this forum.

 

[GemView]

Given the earlier comment that jewelry design falls under the Visual Arts segment of the law, I thought I would contribute my 2¢.

I was something of an artist growing up and once illustrated a sympathy card for a friend who was going through a tough time. Because it was one of my better illustrations and I was giving away the card, I photocopied it but never showed it to anyone outside my immediate family (other than the friend who received it, that is). Years later, long after I had lost touched with my old high school friend, I was in a well known card store and saw the exact same drawing -- an unmistakable little mutt with a sorrowful gaze -- on a card that was identical right down to the words on the front. My jaw just about hit the floor, but I never purchased the "evidence" because I was out of cash and didn't want to write a check for a $2 card. (This was before ATM cards were prevalent, and I figured I would see it in one of the chain's stores closer to home -- big mistake.) Around that same time period, while studying graphic art in college, I had a professor who argued that art is all about inspiration and inspiration is borrowed from absolutely anywhere and everywhere (what they casually refer to as "creative license"). The caveat, of course, is not to steal (replicate) but rather to search out sources of inspiration. He also said that it is nearly impossible to have an entirely original idea because even the best artists have always had their mentors and design influences throughout history. So this is not only a tricky legal area, but an extremely tricky creative area as well.

Those who have worked in creative fields, be it photography or art, want their hard work recognized. At the same time, it is also true that ideas rarely come out of thin air. For instance, many of the great art movements -- and likewise fashion -- build off each other. (Hence, the trends in everything from architecture to jewelry.) This phenomena is not entirely unwanted, however, because "imitation is the sincerest form of flattery". Some artists enjoy being trend setters, but where the problem arises is in receiving due credit for the originality of one's work when everyone else copies it (and perhaps even improves upon it).

On the legal side of the question, equally perplexing paradoxes surface. I am no law expert, but awhile back I did some research into what constitutes a replica vs. a knockoff (which may be relevant because the picture on the left of DiaGem's post looks, at first glance, to be a replica of the original work of art on the right).

I learned that the terms "replica" and "knockoff", while used interchangeably, really aren't interchangeable. Knockoffs resemble aspects of an original but don't claim to be anything more than "inspired" (if that). Replicas, on the other hand, are often branded with familiar trademarks, and are sufficiently alike to deceive onlookers (either buyer or onlooker is fooled, and sometimes both). Because there are so many gray areas, I can see how someone could argue that the design of a custom-made jewelry item is similar but not a replica of a design a client or high profile designer came up with. If, however, a piece of jewelry has Tiffany stamped on the inside and the item in question wasn't manufactured by Tiffany & Co., than you have a bona fide counterfeit on your hands.

The end result is that one may have a "close but not quite" design that is perfectly legal, while on the other hand, true replicas are illegal to sell. But here's where it gets even stickier: There is an exception to the replica rule for buyers. Apparently, there is a loophole for so-called novelty use, which is why people who purchase replica merchandise do not risk fines or jail time. Meanwhile, those who knowingly traffic in replicas can and do receive criminal charges. Similarly, if you've spent any time in large American bookstores, you may have noticed odd titles like the "Anarchist's Cookbook" and "High Times". Under the First Amendment it is perfectly legal to publish, purchase and read a book that spells out a 101 different ways to commit a crime -- murder, in the former example -- or to subscribe to a magazine, in the latter case, that instructs readers how to grow marijuana even though doing so is a federal crime. It just goes to show that American law where matters of copyright vs. artistic license, replica vs. knockoff presents what amounts to a tightrope. That is why I have all the respect in the world for the people who spend so many years in law school, and later in practice, trying to sort all these overlapping details out in the courts!

Good and informative topic, BTW. I especially enjoyed the clarification about copyright law from Isabelle.