It’s been awhile, but I’m finally bringing Tamsen Horton back on the show to talk legalese. We had a few legal questions in the Fresh Rag Army lately (free to join), and instead of me giving out bad advice, I decided it would be best to bring in a pro. The beauty of having Tamsen on is that she’s always brings gifts, like this…
Free PDF – Protecting Jewelry Copyright
(also good for other products)
On top of that, she laid down some written responses to the questions, which I will post just after the links.
Before you read all of this below, it’s important for you to understand that I, Dave Conrey, am not an attorney, and cannot give legal advice. Also, Tamsen is an attorney at law, but she is not YOUR attorney. Take this as friendly insight from someone who just happens to be versed in law. If you’re looking to go deeper on any of these subjects, I highly encourage you to seek out the advice of an attorney, and do things legit. You can, of course, seek out Tamsen.
Listener Question 1
Is it possible to protect a my jewelry designs from theft of other makers? Where is the line between copy and “inspired by” drawn?
Yes, it is possible to protect your jewelry designs from being stolen and used by other makers but you need to follow the rules of US copyright law.
US copyright law protects specific jewelry designs as WORK OF THE VISUAL ARTS. While you have immediate copyright protection when you create the work, you really need to complete the formal copyright registration process.
The unfortunate fact is someone will copy the design and then you may likely need to take legal action against them. Before you can sue them, you have to complete the formal registration process.
Here’s the subtle kicker that few designers know — you have 90 days from the date of PUBLICATION to file your registration if you want to preserve the ‘bonus’ protections of copyright law. After 90 days of PUBLICATION, you’ll still receive protection but you haven’t preserved your STATUTORY DAMAGES or right to ATTORNEY FEES.
So if you’re taking your jewelry designs seriously, then complete the copyright registration process within 90 days of PUBLICATION. Publication starts when you offer your jewelry for sale to the public, or give it away.
U.S. copyright law doesn’t protect concepts or ideas for jewelry, but it does protect specific jewelry designs as works of visual art. A piece of jewelry is protected as soon as it is made, even if it is never formally registered. But registering your jewelry will help you in several ways if you ever have to take someone to court for copying it. These include helping prove that you created the jewelry and allowing you to collect attorney fees if you win. If you create jewelry that is particularly distinctive or if you are concerned about people copying it without permission, copyright registration is probably a good idea.
Listener Question 2
I have an existing logo, and just recently had a character/mascot created for my handcrafted jewelry biz. I use the image and logo separately. If I wanted to copyright both, do I need to do them separately? Or would it be better to combine the logo and the ‘character’ into one image and just copyright once? And if that’s the case… would I still be protected if I use the logo and the character separately? I’m trying to figure out if there’s a way to avoid 2 sets of fees. Here’s the character and my logo. Thanks.
When you are using a logo, words, pictures, etc. as the brand identification for your company that is covered by a trademark and not a copyright. Trademarks are either a word mark, a stylized mark, or a combination. If you use them separately to identify that your company is the source of the goods, then you need to register them separately. Think of a trademark as a child – one trademark = one person.
Listener Question 3
If I were to find a picture I like on Instagram, lets say, of a house. And I want to use it as reference and include it in a painting I’m working on but it isn’t my photo, is that ok? No, I’m not taking the photo and saying it’s mine; but what if I use that piece of the image as reference to paint from in my own composition as a painting?
Proceed with caution!
When you’re making a painting from a photo you are creating a DERIVATIVE WORK. Derivative works are allowed but the copyright owner has certain exclusive rights that you don’t want to violate. (Just because you see it being done, doesn’t mean there’s not a lawsuit going on behind the scenes.)
The copyright owner has the right to reproduce, sell, and make DERIVATIVE WORKS from the original.
“Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work.” Copyright Registration for Derivative Works, US Copyright Office Circular 14, 05/2008
Listener Question 4
I’d like some legal opinion on selling caricatures of celebrities and fan art. I’m confident I can sell the original as a single work of art and a limited number of art prints. Artistically I wouldn’t feel comfortable selling the artwork on a product such as t-shirts or coffee mugs. I know this is a grey area but where are the legal boundaries?
Again, proceed with caution. Selling (commercial purpose) the likeness of any person, including celebrities, falls under the RIGHT TO PUBLICITY laws. These are not federal laws, unlike trademark and copyright, but are created and enforced by individual state law.
The state laws are incredibly inconsistent on this issue and as such – when you’re selling what is allowed in one state could land you in serious hot water and steep penalties in another one.
Here are the questions you need answers to:
- What state are you selling in?
- What is that state’s RIGHT TO PUBLICITY LAW?
- What are the exceptions to your state’s RIGHT TO PUBLICITY LAW?
**Tip – if you live in a state with well-known celebrities (Elvis Presley, Marilyn Monroe) or lots of living celebrities — it’s likely that your state’s RIGHT TO PUBLICITY laws are going to be fairly intricate. Please check with an attorney before selling.
Listener Question 5
I would like a better understanding of copyright law as it applies to clothing, and more specifically, commercial patterns for making clothing. From what I understand, clothing and other “functional” items are not covered by copyright laws. If this is correct, can I use a commercial pattern – for say a T-shirt or other very basic & common designs- to make garments for sale? Can I use the pattern as a base,for making my own modifications of that basic design?
US Copyright law doesn’t protect the underlying method described in a pattern because that information is not an appropriate subject for copyright protection. Now it might be appropriate for a utility patent but not copyright protection.
When you’re looking at a pattern you have to divide it into different pieces: (1) the text and pictures, and (2) the method. The method is not protected. And the US Copyright Office has said that the copyright that is in the text and pictures doesn’t allow the copyright owner any right to prevent others from adapting the described method itself and using for personal or commercial purposes.
If you’ve purchased a legal copy of the commercial pattern, then it’s likely that the FIRST SALE DOCTRINE (17 U.S.C. Sec. 109) may apply. The first sale doctrine states that an individual who knowingly purchases a copy of a copyrighted work (the text and pictures of the pattern) from the copyright holder/owner receives the right to sell, display, or otherwise dispose of that particular copy.
When the copyright holder/owner is distributing legal copies of the pattern on how to create the product that is in the pattern, that gives implied permission to you, if you’ve properly purchased the pattern.
Listener Question 6
If one has a product/service which can potentially unintentionally injure someone (my product for example is lighting & DIY lighting kits – but this could extend to many other products like baby toys etc, or in-person services), to what extent should we go crazy with the biz insurance? What else can we do to protect ourselves from legal action in that regard? I understand having an LLC + relevant biz insurance is a good hedge
Here’s what you need to do:
- Have a business entity (LLC or S-Corporation) in place to remove the personal liability from you and place it on the business.
- Have basic business insurance. No need to go nuts if you’ve properly done #1-#3 above.