[Jewelry making - Article 00233] - [Orchid] Copyright and Jewelry Design Story

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    Hi all, an interesting copyright case involving jewellery from the
    globe and mail newspaper in Canada. 

          It glitters. It sparkles. It's art 
          www.theglobeandmail.com

          Pyrrha, a small but savvy jewellery firm, takes to the courts
          to protect its original designs -- and livelihood -- from
          counterfeits, ALEXANDRA GILL writes 

          ALEXANDRA GILL 

          VANCOUVER -- In Greek mythology, Pyrrha was the daughter of
          Epimetheus, the primordial titan, and Pandora, a poisoned gift
          from the gods. When Zeus put an end to the Golden Age by
          unleashing a great flood, Pyrrha and her husband, Deucalion,
          braved the storm together. After crashing through the waves
          for nine days in a chest, the two emerged as mankind's sole
          survivors. 

          Flash forward to present times. 

          Today, Pyrrha Design Inc. is a small but valiant jewellery
          company, based in Vancouver and owned by husband-and-wife team
          Wade Papin and Danielle Wilmore. Five years ago, when a
          Saskatchewan retailer threatened the couple's livelihood by
          flooding the market with cheap replicas of their work, they
          fought back by taking their own Pandora's Box to federal court.
          Settled last month, it was a watershed copyright lawsuit -- one
          that could have far-reaching implications for other Canadian
          artists. 

          At stake was the question of whether jewellery is a work of
          art, protected by the Copyright Act, as are painting, music and
          works of literature, or a "useful article" with a utilitarian
          function. Although U.S. law is clear -- jewellery is indeed an
          artistic work and as such is entitled to copyright protection
          -- the issue had never been tested in Canada. 

          Because the case was settled out of court, a final conclusion
          has still not been laid down in law. But a ruling last winter
          from the Federal Court of Appeal, siding with Pyrrha, strongly
          suggests that original jewellery designs should be protected by
          copyright. 

          "If it was just about us, we might not have pursued it for so
          long," Papin explains when we sit down for classic cocktails at
          Nu restaurant in Vancouver, where the trendy designers are well
          known in fashionable social circles. 

          "Counterfeiting has become endemic to the jewellery design
          industry," he continues. "Something needed to be done." 

          As part of the settlement, Papin and Wilmore received an
          undisclosed financial sum from Daniel Mysak, president of the
          Western Canadian accessories retail chain SpareParts, along
          with a big box of sterling silver pendants, earrings and rings
          (bearing an uncanny similarity to Pyrrha's fibre optic glass
          Cat's Eye line) and a promise that he would stop producing the
          products. 

          "For the next person who wants to take something like this on,
          it will be a lot easier," says Papin. "We've made a lot of
          headway and given other designers a foot to stand on." 

          When the dispute began five years ago, the self-taught
          Vancouver design team was in the process of establishing a
          solid reputation in the United States. Their funky handmade
          designs -- including a Danish modern-inspired line of
          silkscreens on burled walnut -- were being sold in such
          prestigious stores as Terence Conran in Manhattan and Fred
          Segal in Los Angeles, and in gift shops at the Museum of
          Contemporary Art in Los Angeles and the Andy Warhol Museum in
          Pittsburgh. 

          More recently, their Deucalion line of rugged men's pendants
          and cuffs appeared in the Hollywood film The Chronicles of
          Riddick, while their Seals rings and necklaces (cast from
          19th-century wax seals) showed up at this year's New York
          Fashion Week -- on the runway at Araks's lingerie show and in
          gift bags for front-row VIPs. Britney Spears, Gwen Stefani and
          Jessica Alba are clients. 

          In other words, Pyrrha makes top-quality jewellery. So when
          the firm's exclusive Vancouver retailer called to ask why it
          had begun selling to a shopping-mall vendor, the designers
          panicked. 

          "We jumped in the car and went right over," Wilmore recalls.
          "We had been copied in small ways before, but when we saw this
          line we both felt nauseous. He had 10 different designs,
          stamped with his trademark, with the exact same bevel, chain
          and colour combinations. It was even displayed in much the
          same way we would display it." 

          Mind you, the SpareParts products had been manufactured in
          Taiwan and were selling for half the price of Pyrrha's line. 

          "It's always been our mandate to keep our production in
          Canada," says Papin. "This was such cheap quality, we were
          outraged. Around the same time, we saw a friend in Yaletown
          wearing one of 'our' rings, which actually turned out to be
          [Mysak's]. So here we had people going around saying, 'Look at
          my new piece of Pyrrha' -- as the stone falls out," he says
          with a bitter laugh. 

          Their peers advised them there was nothing they could do.
          "Everyone said, 'The industry thrives on knock-offs,' or
          'Imitation is the highest form of flattery.' This wasn't
          imitation. To us, it was theft," exclaims Wilmore, who still
          gets flustered when she talks about it. 

          The couple hired Jennifer Conkie, the high-profile Vancouver
          lawyer who had just come out of a much-talked-about trial in
          which she successfully represented musician Sarah McLachlan in
          a lawsuit brought on by a disgruntled songwriter. 

          Eventually, after a cease-and-desist letter failed to persuade
          Mysak to back down, Pyrrha took the case to court. All along,
          the retailer had maintained that jewellery is a "useful"
          article, because it is worn on the body, and if more than 50
          copies of any one design are made, it is exempt from the
          Copyright Act and can be counterfeited with impunity. 

          Pyrrha's lawyer argued that jewellery is no more useful than a
          painting on a wall or a sculpture adorning a lobby. Unlike a
          jacket or a pair of eyeglasses, it is not worn for warmth, to
          improve eyesight or for any function other than aesthetic
          appearance. On March 23, 2004, Justice Paul Rouleau dismissed
          the claim. Siding with Mysak, the motions judge explained in a
          summary judgment that jewellery is not protected by the
          Copyright Act, but should be dealt with under the Industrial
          Design Act, because it is a three-dimensional object "not
          bought purely and simply for its artistic properties, but
          because of the utility of the article apart from design." 

          The designers were devastated -- and broke. "We had already
          spent $30,000 on the case and gotten nowhere," recalls Wilmore. 

          Their lawyer agreed to launch an appeal, continuing with the
          case on a contingency basis. "Whether you're famous or
          not-so-famous, large or not-so- large, I feel strongly about
          the importance of copyright protection for artists of all
          genres," Conkie explains. "It's hard enough for artists to
          make their way in the business world. The Copyright Act should
          be there to protect them and given full force and effect." 

          On Dec. 13, 2004, a Federal Court of Appeal agreed,
          unanimously, to overturn the earlier decision. The ruling judge
          noted that there was an issue of "genuine interest" to be heard
          that hadn't been litigated previously. 

          "A tie pin or cufflinks may be useful types of jewellery that
          hold clothing together, while other objects such as a brooch or
          earring may be purely ornamental and not useful at all,
          valuable only for their own intrinsic merit as works of art,"
          Justice Allen M. Linden said in the decision, which allowed
          the case to proceed to a full and fair trial. 

          Although the decision was an important one, observed closely
          in the legal field and cited in intellectual property
          newsletters from here to Australia, Pyrrha still wasn't much
          further ahead. In the following year, the case bogged down with
          pre-trial applications and disagreements on technicalities. 

          "We were met with a surprising amount of resistance," says
          Conkie, who received approximately 10,000 questions for
          discovery from the defendant's lawyer. 

          "When you're involved in something like this for five years,
          you can understand why some people opt for the baseball-bat
          route," Papin jokes. "They were trying to drown us in paper. We
          really wanted this case to be heard, but when [Mysak] finally
          agreed to settle and stop making the product, which is what we
          were after all along, we had to accept it and move on with our
          lives." 

          Although the case sends a strong message to would-be
          counterfeiters, the issue of whether jewellery is, indeed, art
          is still left hanging, legally speaking. 

          "In all truth, it would have been valuable to complete the
          case and have the court say clearly that jewellery is
          copyright-protected and counterfeiting is a copyright
          infringement," says Conkie. 

          Although Papin says he's pretty sure no one will be copying
          Pyrrha's designs any time soon, he and Wilmore now have to
          decide what they're going to do with the "big box of offending
          jewellery" they received as part of the settlement. 

          With a laugh, Papin says: "We're thinking about pouring it all
          into clear acrylic and making it into an art piece called
          Knock-Off." 

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