[Jewelry making - Article 00895] - Re: [Orchid] [Again] Copyrights

[James White]

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    Warning to prospective readers: This gets long but the point is
    simple, simple (and correct) statements about the law which include a
    "qualifier" part can be correct ONLY with the qualifier. FULL
    understanding of the qualifier will give full understanding of the
    statement. While there very well might be specific cases where the
    omission of the qualifier is ALSO CORRECT it is NOT POSSIBLE to
    make---or understand---a GENERAL statement without the qualifier---or
    full understanding of the qualifier. 

>>     IF they are all pictures you took of jewelry you created
>>    independently then there are no possible copyright problems. 

>             Not quite true! If the work you create and photograph
>     infringes on a registered trademark you can have big trouble very
>     quickly. Try making jewelry that uses NFL logos without getting
>     the proper licencing. 

    The original statement (with the >>) is absolutely correct when
    "created independently" is understood the way the LAW understands it
    pertaining to COPYRIGHT (see the statement) issues. When your "work,"
    as the original poster suggested is simply a diamond decorated
    Harley-Davidson logo trademark then the work WILL NOT meet any
    court's definition of "created independently." I also think I made
    that very clear in the rest of my post in which I also discuss the
    TRADEMARK aspects. 

    But if you want to play "that's a stupid statement because I can
    construe it wrong" I'll be glad to play! Except for your
    erroneous-due-to-misconstruing "Not quite true!," your statement is
    correct when all the words are read and construed correctly. BUT... 

    How do we cast this sentence "If the work you create and photograph
    infringes on a  registered trademark you can have big trouble very
    quickly." 

    1. If the "work" infringes on a "trademark"... 
    2. If the "work" infringes on a ***registered*** trademark... 
    3. If the work "you create" infringes... 
    4. If the work "infringes" and the photograph "infringes"... 
    5. If the work you create-and-photograph infringes... 
    6. If the work is a trademark (of someone else's)... 
    7. If the work includes a trademark (of someone else's)... 
    8. If the photograph is of a trademark (of someone else's)... 
    9. If the photograph includes a trademark (of someone else's)... 

      --1. The first construction, the "work" infringing a "trademark",
      is clearly the correct construction. 

      --2. Whether a trademark is **registered** (federal, state, both?)
      is not relevant (though practically speaking the guys with the
      nationally registered marks are by far the most likely to make any
      fuss). 

      --3. As previously noted, "create" or "author" (as a verb) are
      COPYRIGHT issues, borrowing for personal profit someone's trademark
      is a TRADEMARK issue so "you create" has no business being in the
      sentence, it just confuses. (Note that you apparently use the "you
      create" part in the copyright legal sense in your statement even
      though you chose to construe it as "personally make" when
      mis-interpreting my statement, i.e., while you know the words you
      don't *understand* the words.) 

      --4. Funny that bit about "infringes." Yep, ONLY IF it does in
      fact "infringe" can you ---generally---have "big trouble. (There
      are jerks who do overagressively go after non-infringers and, in
      fact, the law to some extent encourages this.) Also see 6-9 below
      for more relevant to this construction. 

      --5. Pretty close to just a restatement of 1. where the hyphenated
      phrase serves to define specifically what "work" is being talked
      about. 

      --6. Can you make a jewelry piece that is, in fact, identical to
      someone's exact trademark without infringing their trademark? The
      answer is a resounding YES. The fundamental rule of trademarks is
      "likelihood of confusion" (to the relevant buyer's/viewers). In
      fact the exact same trademark can be used for two non-related sets
      of goods or services by two (or three...) unrelated parties. Would
      you mistake "Delta" in relation to airlines for "Delta" in relation
      to plumbing fixtures? No. If you happen to make a diamond studded
      silver ear ring with a "swish" exactly proportional to (or close to
      or similar but distinctive from...) the Nike "swish" trademark
      would you infringe Nike's trademark? If it was part of a line where
      you also had a 3-bar Adidas logo then almost certainly yes but
      baring that then it's extremely unlikely you would get in "big
      trouble." (Little trouble perhaps in the form of an easily answered
      "cease and desist letter" would also be very unlikely). And if you
      wanted to push big trouble or little trouble all the way to court
      you very likely might win. A distinctive black and orange logo with
      the words "Harley-Davidson" in it hardly qualifies as unlikely to
      be confused with a LICENSED version of same. A five pointed star, a
      rose, and a thousand and one other things commonly appear in BOTH
      jewelry (or creative works) and trademarks (which are creative
      works themselves always but only in the COPYRIGHT legal sense
      sometimes) without there being any trademark infringement. (...more
      in 7-9) 

      --7. Did you see James Miller's gorgeous plique a jour? What if
      there is embedded therein, in one of the many small windows, an
      exact Nike swish? Would he be infringing Nike's trademark? You will
      be laughed out of court to even suggest such a thing. If it were
      the prominent feature then it gets more questionable----if it were
      on a shoe sculpture then... But what if the image created was a
      farm scene where a gas tank on a stand in the foreground
      prominently displayed a shell logo of Shell Oil Corp------and the
      barn was writ large with "Chew Mailpouch Tobacco"? Are these to be
      found by the courts to be trademark infringements? Clearly they are
      well known trademarks and clearly they are copied-----but they are
      NOT the essence of the work, they are evocative of the nostalgia of
      the farm scene--they do NOT infringe. (...again, more in 8-9) 

      --8. Just a photograph of a trademark is a photograph of a
      trademark. Nothing more. The photograph itself is extremely
      unlikely to be construed by the courts as infringing the trademark.
      In general neither photos or publishing of photos infringe anyone's
      trademark rights (if I recall correctly there was a famous
      photograph of some well worn Converse high tops where Converse
      sought in the courts to get a piece of the print sales and got
      severely (figuratively) beaten about the head and shoulders before
      escaping the courtroom with their lives!--perhaps my memory is
      faulty and/or I exaggerate a bit). Of course you could post
      photographs of the Rolex trademark (and maybe of a few Rolexes)
      prominently around your jewelry displays then sell watches marked
      "rolex-style"------but that has the distinctive ODOR of FRAUD and
      would certainly be a gross abuse of the Rolex trademark too.
      (...again, more in 9) 

      --9. Supposing the farm scene from above was a photograph. And
      when blown up to poster size a yellow and green tractor and a white
      and red combine (marked with something that looked like "H" but
      with a middle vertical bar) and a Firestone tire could all be
      easily seen and recognized. The photo has 5 recognized trademarks
      in it. Does it infringe them? No way. Would a painting of the same
      scene? Would 20 paintings and 200 photographs of the same scene
      done by an art class? Would any of the paintings or photo's
      infringe any of the other artist's works? Okay, that last one is a
      whole different topic but, absent copying, the answer is still NO. 

    Louie said, "...then the Realtor grabbed a Kleenex off the Formica
    countertop and rubbed the Plexiglas where he'd just sprayed the
    Windex." 

    "Oh," Louige intoned, "You'se mean instead a' dealin' wid da
    stinking fish lyin' on da porch the real estate salesman grabbed a
    facial tissue off the resin impregnated heat and pressure sealed
    laminated sheet material countertop and rubbed the clear resin
    substitute for glass where he'd sprayed the winder cleanin'
    solution?" 

    Eh, you get the point. Those uses of trademark DO NOT infringe
    anyone's trademark rights----but one doesn't have to make the point
    except for the benefit of those who cannot comprehend the meaning of
    the qualifier "infringed" in the statement under discussion. 

James E. White
Inventor, Marketer, and Author of "Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)"  Info Sites:   www.willitsell.com    www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com

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