[Jewelry making - Article 00959] - Re: [Orchid] Copyright and research

[James White]

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>     A new artist to a long-running show made these really cool [***]
>     jewelry things.  A coil of sterling, with a pin & charms/stones on
>     it.  It was clearly marked patent pending, and copyrighted.  A
>     worker from another jeweler at the show bought one.  When she got
>     back to her booth, her boss asked to see it, so the gal showed,
>     quite excited with her new bauble.  This year, at all the shows the
>     second jeweler is in, they have these "[***] coils", and are
>     selling them quite handily, but they have no copyright, etc marked
>     on them. Is this a copyright infringement/violation? 

    First, ***if*** no patent was pending, i.e., no Provisional
    Application for Patent (PAP) or regular Application for Patent
    (design or utility) had already been filed, the new artist is in
    violation of the law and committing a crime by using "patent
    pending". We'll hope an application was filed (and you cannot file a
    PAP for a design patent either). 

    Second we'll assume "copyrighted" means either a copyright
    registration was filed with the LOC or at the very least proper
    copyright markings appeared on the pieces sold by the new artist.
    ("Copyright," as we all know, is inherent the instant a work is in a
    fixed form but failure to provide notice may lead others to believe
    the expression, or utility, of the work is being provided to the
    public domain.) 

    Is their a copyright infringement? Unfortunately you'll need to take
    the exact specifics, one (or more) of the new artist's works and one
    (or more) of the second jeweler's works, to a genuine Intellectual
    Property attorney to get a legal evaluation. My guess is the new
    artist actually is making many UNIQUE creations rather than copies of
    one original work and that the second jeweler is also making UNIQUE
    creations also, not COPIES. The issue then will be how "derivative"
    is derivative enough to win a law suit? Copyright does NOT protect
    ideas, it does not protect general concepts, it does not protect
    functionality; it only "protects" against the copying (either exactly
    or derivatively) of a specific "expression." 

    If the attorney determines there might be an actionable case there
    and the new artist is willing to PAY for the attorney's services then
    the attorney would likely start by drafting a letter and sending it
    to the alleged copyist with "cease and desist" language. That may get
    the desired response, but it may not. The next level would likely be
    filing of a law suit. That too may get the desired response, but it
    may not. Now $1,500 to $5,000 has been spent, is it worth it
    continuing??? (Boy, these BUSINESS decisions are tough!) 

    On to patent issues. There are 2 kinds of patents, Design and
    Utility (those are the US names, other countries have similar types
    but use different terminology). Design patents are rarely worth
    anything, only protect the "ornamental appearance" AS SHOWN IN ALL 6
    (usually) views of the Design patent drawings, and are only good for
    14 years. They are little used because they are expensive and short
    lived relative to copyright but in no case would they protect the
    idea of [***] jewelry or the functionality of a particular [***]
    jewelry concept. A utility patent will, AFTER IT ISSUES (if ever) and
    until it expires (about 20 years from application IF maintenance fees
    are kept paid), allow the holder to sue infringers of the
    functionality claimed in the claims of the utility patent at their
    own expense and trouble. 

    And there's the crunch. What will the claims be able to claim? For a
    [***] jewelry item with "a coil of sterling, with a pin &
    charms/stones" what will be the "novelty, non-obviousness, and
    utility" that is essential for the grant of a patent? The odds are
    heavily stacked against a broad, worthwhile patent for essentially a
    decorative item in the jewelry field. If any utility patent can be
    gotten at all it likely will be quite narrow and easily worked around
    without damaging the essence of the [***] jewelry item. 

    Also the mere fact of "patent pending" gives the applicant NO RIGHTS
    against infringers. Patent rights don't occur until (if) a patent
    issues. And those rights are NOT retroactive (w/1 exception), they
    only start on the date the patent issues. (To have any retroactive
    rights 3 things must occur: 1) the patent application must have been
    published, 2) the final issued claims must be close to those in the
    application, and 3) the infringer must have been actually notified of
    possible infringement. Even then the infringed party is only eligible
    for "reasonable royalties" from the time the party was notified or
    the application was published, which ever is later, till patent
    issue.) 

    Whew! So does the new artist have much, if any, recourse. Probably
    not much through copyright or patent suits at this point. There is
    one other avenue and that is a civil suit on business ethics (or
    kindred) grounds but that too would need to be entered as a BUSINESS
    decision. One fact of life is that UNETHICAL people simply do not
    care whether they are violating the law, ethics, your rights, hurting
    your feelings, cheating, acting like scum, or whatever. They want
    what they want NOW and they take it, if you win a judgement against
    them you'll never collect it because they won't pay anyway. The law
    and the courts are only good for dealing with ethical, responsible
    people. 

    That will be $600 please:-).  (---and that's not even a legal
    opinion) 

James E. White
Inventor, Marketer, and Author of "Will It Sell?



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