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copyright protection of jewelry

Page history last edited by kari@... 15 years, 1 month ago

Copyright protection of jewelry

Better a diamond with a flaw than a pebble without

Chinese Proverb

 

Introduction

Copyright is the protection of “original works of authorship fixed in any tangible medium of expression”,1 provided by the laws of the United States. This copyright protection „includes literary, dramatic, musical, artistic, and certain other intellectual works. The protection is available to both published and unpublished works.2 Under section 106 of the 1976 Copyright Act (‘The Act’), the owner of copyright in a work has the exclusive right to make copies, to prepare derivative works, to sell or distribute copies, and to display the work publicly.3 Anyone other than the copyright owner, who wishes to use the protected work, must have the permission of the author or other person who owns derived rights through him.4

 

Copyright Protection Is Automatic

Under the present copyright law, which became effective January 1, 1978, “a work is automatically protected by copyright when it is created”.5 Such a work is created, when it is ‘fixed’ in a copy for the first time. Neither registration in the Copyright Office nor publication is required for copyright protection under the present law.6

 

Copyright does not protect ‘ideas’

Copyright, however, does not extend to ideas, techniques, phrases, processes, and the like.7 It is a concept, which is stated in section 102 of The Act and which only protects the expression contained within a work. “Not the underlying plot, or theme, or insight of the work.”8 However, under the US copyright law, there is no protection of ‘ideas’ whatsoever. The Supreme Court had to deal with this question regarding jewelry in the case of Herbert Rosenthal Jewelry Corp. v. Kalpakian .9

 

In this case, the Court permitted copying of a jewelry pin in the shape of a bee on the ground that the idea of a bee merged with the expression of that idea. The Court in Rosenthal recognized that there are only a limited number of ways to make a jeweled pin that looks like a bee, and that any subsequent design of such a pin would bear a close resemblance to the plaintiff’s pin. If everyone else ‘s bee pins were found to infringe the plaintiff’s, the plaintiff would be the only person allowed to make pins in the shape of a bee.10 As the court put it, “When the ‘idea’ and its ‘expression’ are thus inseparable, copying the ‘expression’ will not be barred, since protection the ‘expression’ in such circumstance would confer a monopoly of the ‘idea’ upon the copyright owner free of the conditions and limitations imposed by the patent law”.11

 

Useful Articles

“A ‘useful article’ is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information”.12 Examples are clothing, furniture, machinery, dinnerware, and lighting fixtures. An article that is normally part of a useful article may itself be a “useful article”13, for example, an ornamental wheel cover on a vehicle.14

 

Copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship.15 It may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object.16 An useful article may have both copyrightable and uncopyrightable features. Therefore could a carving on the back of a chair or a floral relief design on silver flatware be protected by copyright, but the design of the chair or flatware itself could not.17 Some designs of useful articles may qualify for protection under the federal patent law.18

 

Copyright in a work that portrays a useful article extends only to the artistic expression of the author of the pictorial, graphic, or sculptural work. It does not extend to the design of the article that is portrayed.19 For example, a drawing or photograph of an automobile or a dress design may be copyrighted, but that does not give the artist or photographer the exclusive right to make automobiles or dresses of the same design.20

 

Accessory designs have been considered for a long time as ‘useful articles’. These serve more a functional purpose rather than an artistic purpose. “Because of this functionality, a clothing or accessory pattern can’t be copyrighted, even if it has a unique shape, cut, or design”.21 Only the features that can be identified separately and can exist independently of the utilitarian aspects of the article can be copyrighted.22

 

Works of the Visual Arts

Copyright protects original “pictorial, graphic, and sculptural works,”23 which include two-dimensional and three-dimensional works of fine, graphic, and applied art.24

 

Today, jewelry is in general seen as part of the “visual art work”.25 However, different conditions have to be met in order to have a copyright protection for jewelry. Case law shows, that it is not always evident how to categorize jewelry designs. Costume jewelry, however, is copyrightable subject matter entitled to protection under Copyright Act.26

 

In Davis v. The Gap, Inc. (2001) [ 246 F.3d 152] , the designer, Davis [http://www.onmumusic.com/on.html], created designs of eye jewelry, which he described as “sculptured metallic ornamental wearable art.” Each piece was made of gold, silver, or brass, and constructed in a manner similar to eyeglasses, but with a very different effect: “(t)he frames support decorative, perforated metallic discs or plates in the place that would be occupied by the lenses of a pair of eyeglasses. The discs effectively conceal the wearer's eyes, although the perforations permit the wearer to see through them.” Davis had registered his copyright for the design. Despite this fact, the Gap used the eye jewelry on a model in an advertisement for the stores operating under the “Gap” trademark that was displayed throughout the U.S.

 

The case was primarily about whether Davis was entitled to damages, and if so, the size of such damages. However, as one of the reasons for rejecting the Gap’s attempt of being excused under a “fair use” defense, the court noted that the infringing item was highly noticeable in the advertisement: “partly because Davis's design and concept (were) strikingly bizarre; it is startling to see the wearer peering at us over his Onoculii. Because eyes are naturally a focal point of attention, and because the wearer is at the center of the group-the apex of the V formation-the viewer's gaze is powerfully drawn to Davis's creation. The impression created, furthermore, is that the models posing in the ad have been outfitted from top to bottom, including eyewear, with Gap merchandise.” The court held that Davis’s copyright had been infringement but he was not awarded nearly the amount of damages sought.

 

In Trifari, Krussman & Fishel, Inc. v Charel Co., the Court stated, that „relative artistic merit of work is not material in determining eligibility for copyright; costume jewelry may express artistic conception no less than painting or statue; simply because costume jewelry is commonplace fashion accessory, not an expression of ‘pure’ or ‘fine’ art, does not preclude finding that such jewelry is ‘work of art’ within meaning of Copyright Act”.27

 

Even if this reasoning shows that jewelry can be protectable under the Copyright Act, it is still to be defined, that the respective piece is a “work of visual art” and not an “useful article” nor is it related to it.

 

In Todd v Mont. Silversmiths, Inc. a designer's barbed-wire jewelry was not protectable under copyright laws, because it was not shown by the plaintiff what copyrightable feature(s) she added to her work to separate it from ordinary public domain barbed-wire;28 the Court stated that “copyright could not be granted in arrangement that was not visually distinguishable nor truly ‘original’ in ordinary meaning of word”.29

 

A similar reasoning was held by the Court in the case of Vacheron and Constantin-LeCoultreWatches, Inc. v. Benrus Watch Co., Inc.. Vacheron’s copyright registration was originally rejected by the copyright office.30 The court upheld the copyright office’s rejection of the application and it held that the design of a watch face, though original, unusual and jeweled, was not a work of art, which could be seen as separable from the utility of the watch.31

 

However, as we can see in the decision of the First Circuit in MagJewelry Co., Inc. v. Cherokee, Inc., even if there is a possible copyright infringement of jewelry and the copyright protection is generally given, the burden of prove relies on the plaintiff, who is claiming the copyright protection. He has to submit sufficient evidence for the fact that the accessory is illegally copied.

 

At issue was a “crystal angel” jewelry design comprised of four crystal stones in the shape of an angel.32 The defendant denied copying the jewelry, claiming that the “crystal angel” in jeopardy was based on an identical design independently created by someone else.33

 

Although the designs were basically identical, the Court affirmed the district court’s grant of defendant’s motion for summary judgment because the plaintiff could not provide sufficient evidence of copying.34

 

Conclusion

Copyrightable works are logos, artwork, or design elements that are stitched, imprinted, or embossed onto fabric; ornamental aspects of jewelry, belts and other accessories.35

 

Not copyrightable are style, shape, cut, pattern, or material of the clothing articles and basic utilitarian aspects of jewelry, belts, and other accessories.36

 

Other than the fashion design that has no copyright protection whatsoever under the actual copyright law in the United States, jewelry can generally fall under copyright protection. This needs under normal circumstances no previous registration. However, in order to ensure the protection of the regarding piece under the Copyright Act, the jewelry needs to meet certain conditions. It has to be considered as a “work of art”, any kind of pictorial, graphic, or sculptural authorship and has to be identified separately from the utilitarian aspects of the jewelry. The complaining party has to give evidence and to prove the fact that the piece was copied and that the copyright was infringed.

 

Even if registration is generally not required in order to have copyright protection, the recent case of Cosmetic Ideas, Inc. v. IAC/Interactivecorp shows the need for registration of copyrights and even to do so in due time, in order to be entitled to statutory damages and attorneys’ fees. Because the plaintiff did not register its copyright within three months from publication or before the infringement commenced, the plaintiff was prevented from recovering attorneys' fees or statutory damages under 17 U.S.C. 504 and 505.37

 

In this case – a copyright infringement lawsuit in Los Angeles Federal District Court – the Court did not decide upon the fact if the jewelry was copied or not and therefore the plaintiff’s copyright was infringed. The complaint was on behalf of Sweet Romance Jewelry Mfg. for copying of protected jewelry designs. In 1997, Sweet Romance authored, as an employer for hire, a jewelry design, which was first sold in 1999 through the defendants’ competitors. Only in March 2008 the plaintiff submitted the design U.S. Copyright Office for registration.38

 

The jewelry was protected under U.S. copyright law. The only fact that the plaintiff did not register his design within due time prevented him from getting damages under 17 U.S.C. § 504, which he was seeking with his complaint.

 

 

1) 17 U.S.C. § 102 (a)

2) http://www.copyright.gov/circs/circ1.html#wci (last visited April 22th, 2008)

3) 17 U.S.C. § 101

4) http://artsandcraftslaw.blogspot.com/2007/10/copyrights-101-part-1.html (last visited April 19th, 2008).

5) http://www.copyright.gov/circs/circ40.html (last visited April 20th, 2008).

6) Id.

7) 17 U.S.C. § 102 (b)

8) Roger E. Schechter, John R. Thomas, Intellectual Property – The Law of Copyrights, Patents and Trademarks (2003), at 32.

9) Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971).

10) Schechter supra note 8, at page 34.

11) Rosenthal, supra note 9.

12) 17 U.S.C. § 101, at 14 (2000).

13) Id.''

14) http://www.copyright.gov/circs/circ40.html (last visited April 19th, 2008).

15) 17 U.S.C. § 101 (2000).

16) http://www.copyright.gov/circs/circ40.html (last visited April 21th, 2008).

17) Id.

18) 17 U.S.C. § 101, at 14 (2000).

19) http://www.copyright.gov/circs/circ40.html (last visited April 21th, 2008).

20) Id.

21) http://saperlaw.com/blog/wp-content/uploads/2007/09/cba-fashion-presentation-final.pdf (last visited April 19th, 2008).

22) Id.

23) 17 U.S.C. § 102 (a) (5) (2000).

24) http://www.copyright.gov/circs/circ40.html (last visited April 19th, 2008).

25) Id.

26) See generally, Boucher v Du Boyes, Inc., 253 F.2d 948 (1958); Hollywood Jewelry Mfg. Co. v Dushkin, 136 F Supp 738 (1955).

27) Trifari, Krussman & Fishel, Inc. v Charel Co., 134 F Supp 551 (1955, DC NY).

28) 17 U.S.C. §102, at 68 (2000).

29) Todd v Mont. Silversmiths, Inc., 379 F Supp 2d 1110 (2005 DC Colo).

30) Vacheron and Constantin-LeCoultreWatches, Inc. v. Benrus Watch Co., Inc., 155 F. Supp. 932, 934-35 (S.D.N.Y.1957).

31) http://saperlaw.com/blog/wp-content/uploads/2007/09/cba-fashion-presentation-final.pdf (last visited April 19th, 2008).

32) Id.

33) MagJewelry Co., Inc. v. Cherokee, Inc., Nos. 06-1556, 06-2127 (1st Cir. Aug. 8, 2007).

34) Id.

35) http://saperlaw.com/blog/wp-content/uploads/2007/09/cba-fashion-presentation-final.pdf (last visited April 19th, 2008).

36) Id.

37) Cosmetic Ideas, Inc. v. IAC/Interactivecorp, CV08-02074 R (C.D. California); Los Angeles Copyright Attorneys File Jewelry Copyright Infringement Lawsuit Over Copying Protected Jewelry Design, available at: http://www.iptrademarkattorney.com/2008/04/copyright-attorneys-jewelry-los-angeles-protected-jewelry-design-lawsuit-copying-copyrights-la.html (last visited April 19th, 2008).

38) Id.

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