[Jewelry making - Article 00262] - Re: [Orchid] Ecommerce and Repairs

[James White]

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>     picture and I replied that certainly we can do something very
>     similar to that, but an exact replica would violate copyright. She
>     thought 

    Even an "inexact" replica will violate copyright. From the copyright
    law fresh this morning: (***marked sections are most applicable***) 

    start quotes 

    A "derivative work" is a work ***based upon one or more preexisting
    works***, such as a translation, musical arrangement, dramatization,
    fictionalization, motion picture version, sound recording, art
    reproduction, abridgment, condensation, ***or any other form in which
    a work may be recast, transformed, or adapted***. A work consisting
    of editorial revisions, annotations, elaborations, or other
    modifications, which, as a whole, represent an original work of
    authorship, is a "derivative work". 

    102 - Subject matter of copyright: In general (a) Copyright
    protection subsists, in accordance with this title, in original works
    of authorship fixed in any tangible medium of expression, now known
    or later developed, from which they can be perceived, reproduced, or
    otherwise communicated, either directly or with the aid of a machine
    or device. Works of authorship include the following categories: 

    (1) literary works; 

    (2) musical works, including any accompanying words; 

    (3) dramatic works, including any accompanying music; 

    (4) pantomimes and choreographic works; 

    ***(5) pictorial, graphic, and sculptural works;*** 

    (6) motion pictures and other audiovisual works; 

    (7) sound recordings; and 

    (8) architectural works. 

    (b) In no case does copyright protection for an original work of
    authorship extend to any idea, procedure, process, system, method of
    operation, concept, principle, or discovery, regardless of the form
    in which it is described, explained, illustrated, or embodied in such
    work. 

    103 - Subject matter of copyright: Compilations and derivative works 

    (a) The subject matter of copyright as specified by section 102
    includes compilations and derivative works, ***but protection for a
    work employing preexisting material in which copyright subsists does
    not extend to any part of the work in which such material has been
    used unlawfully***. 

    (b) The copyright in a compilation or derivative work extends only
    to the material contributed by the author of such work, as
    distinguished from the preexisting material employed in the work, and
    does not imply any exclusive right in the preexisting material. The
    copyright in such work is independent of, and does not affect or
    enlarge the scope, duration, ownership, or subsistence of, any
    copyright protection in the preexisting material. 

    106 - Exclusive rights in copyrighted works Subject to sections 107
    through 122, ***the owner of copyright under this title has the
    exclusive rights to do and to authorize any of the following:*** 

    (1) to reproduce the copyrighted work in copies or phonorecords; 

    ***(2) to prepare derivative works based upon the copyrighted
    work;*** ... 

    107 - Limitations on exclusive rights: Fair use Notwithstanding the
    provisions of sections 106 and 106A, the fair use of a copyrighted
    work, including such use by reproduction in copies or phonorecords or
    by any other means specified by that section, for purposes such as
    criticism, comment, news reporting, teaching (including multiple
    copies for classroom use), scholarship, or research, is not an
    infringement of copyright. In determining whether the use made of a
    work in any particular case is a fair use the factors to be
    considered shall include-- 

    (1) the purpose and character of the use, including whether such use
    is of a commercial nature or is for nonprofit educational purposes; 

    (2) the nature of the copyrighted work; 

    (3) the amount and substantiality of the portion used in relation to
    the copyrighted work as a whole; and 

    (4) the effect of the use upon the potential market for or value of
    the copyrighted work. 

    The fact that a work is unpublished shall not itself bar a finding
    of fair use if such finding is made upon consideration of all the
    above factors. 

    end quotes 

>     local merchant. It is awfully tempting to suggest to potential
>     customers that they might use the internet to get ideas and then
>     come in to us for the final product. 

    Of the 107 "fair use" considerations, (1) this is certainly
    "commercial" so that would count against you; (2) the nature of the
    work, being jewelry in general might go in your favor BUT the
    specifics of the work being not "exactly replica[ted]" very well
    might go against you; (3) this will almost certainly go against you
    other wise the customer would not get what they wanted; and (4) you
    would certainly be either robbing the original's creator of their due
    profits or diminishing the value of their work. 

    Consult your knowledgeable copyright attorney for specifics in any
    specific case and see if your client still wants to "buy local" given
    the custom work charges and attorney fees. (Yes, she may get someone
    down the street to either do the copying ignorantly or deliberately
    in sin.) 

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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