Wednesday, May 21, 2014

Intellectual Property: What it means, and my own experiences with it.

I've recently been dealing with a few issues regarding my business, having to do with the infringement of both my intellectual property and copyrights. There are also a lot of questions out there regarding legalities when it comes to jewelry designs. This has inspired me to make a blog post (YES! after a lengthy absence, haha). 

Ah, yes, the world of confetti lucite. 
It seems that when it comes to the type of jewelry that I create, a small subculture of designers has emerged and within it is a lot of tension. I see a lot of support offered between people-- but support that later morphs into jealousy and hatred. With that comes drama. I honestly feel that in most instances, it starts off as jealousy masked as support. Kind of like that old saying, "Keep your friends close but your enemies closer".  There has been a lot of mudslinging as of late and it definitely seems that if someone stands up for their work or feels that their rights are being infringed upon, that they are immediately pegged as a horrible, jealous person that isn't supportive of the others that are doing the same thing. 

Here's what's been going on with me… 

A former customer of mine has been duplicating two of my designs exactly and offering them for sale online and at assorted events-- one of which they purchased from me a couple of years ago. The other is one that was exclusively designed by me last year for a very popular clothing brand. 
I have spoken out about it and have had people that aren't even involved in the situation (but that are designers of similar jewelry) involve themselves to try and cyberbully me, and have defamed not only myself but my company. What they are doing can be deemed as illegal, but to me, that's beside the point that I'm trying to make. I am bringing it up because there are several things I am seeing repeatedly posted around the internet from these people and their followers that try to make those of us that stand up for ourselves feel like we are in the wrong. I'm writing this blog so that people can understand where I and others are coming from and to inform others that they do have rights when it comes to the baubles they create.


"Nothing is new! It's all been done before. You are doing "vintage reproduction jewelry."

Yes, to an extent. Vintage reproduction or inspired means in the style of a particular era. However, in most cases, it is NOT an exact copy. 

The reason I started doing this particular style of jewelry is because the vintage pieces (which I have been collecting for a very long time) lacked. Most are quite crude. Dull from years of improper storage. Oxidation stemming from the metallic components suspended in the plastic occurs, which leads to the plastic breaking down-- fogginess and weird smells come with the territory. Sometimes you'll even get confetti pieces sticking out of the plastic! My biggest issue with the vintage stuff has always been the lack of colors. Occasionally you'll come across a stellar clamper bracelet with vivid squares of confetti packed in there, but they are few and far between (and they're usually a lot of money). Don't get me started on the ones that contain seashells or sea life. Those are the most crude and unappealing of all, yuck! 

Once you've been collecting this stuff for a number of years, you start seeing repeats of the same pieces and everything starts to look the same. 

I wanted different colors. Vivid colors! Different shapes. Something unique. That's why I started doing this. It was for my own selfish reasons in the beginning, though it didn't take long for me to turn it into a full-fledged legitimate business. 



"There are only so many molds and materials that can be used! They all come from the same craft stores! 

"Unless you are making the molds and glitters and materials yourself, you don't own it."

I am only speaking for myself here, but I use very few commercial molds. I was lucky enough to learn how to do my own sculpting, molding and casting and such as a young art student. My "Bottoms Up!" brooch is the greatest example of this. It took me almost a month to perfect the mold for this.



Copyright © 2012 SparkleLux of Palm Springs


I source my materials from wholesalers, and I've even had some materials custom made for me. I frequently hand-dye some of my own components, as well.

I guess I don't own the paintings I do because I purchase my brushes, canvases and paints at an art supply store rather than making them myself?


"Nobody owns this stuff, you didn't' invent it, so to say that someone is copying you is silly!"

Wrong. I own all of my work. 

I've seen a lot of comments about, pertaining to people like myself that stand up for the work I do (as well as others)-- trying to discount our defense as daft, as if we want to be the ONLY ones making this sort of jewelry or that we are claiming to have been the sole creator or inventor of it. That couldn't be further from the truth. 

Here's the lowdown, kids. 

Inspiration comes from all sorts of sources. Mine isn't solely vintage-related. As an lifelong artist, I find it everywhere I go. I'm constantly taking photos of assorted things. My first career was in photography, after all. Flowers, the sky, a rock, someone's house, something in the grocery store, and so on. I'm inspired by fabrics, certain styles of fashion. I've even been inspired by furniture and automobiles! 

When I get an idea for jewelry, I make multiple sketches of it. For me, it's just not dumping glitter in a mold and getting whatever result happens when the materials cure. I make a detailed sketch, write down formulas. I have a disgusting amount of stacks of file folders and papers in my studio. There's a reason (aside from the high demand) that my turnover time is rather long. I do not pop things out of a mold and glue earring components onto them. Yes, I have a general list of colorways that I offer, but more times than none, it's custom pieces that I am creating for my customers. My customers are a huge source of inspiration, as well. 

Legal matters absolutely fit in with jewelry creation. Any unique piece of jewelry that someone creates is their own intellectual property, starting at the exact time that they publish the piece. 

For example, if you create a piece of jewelry, and post it on your brand's Facebook page at 2:35 pm. on October 2, 2009, that is the date of publishing and that is your proof of intellectual property. Yes, you may register a copyright on that piece. But say if you haven't, and someone is exactly reproducing your design and is selling it, you DO have a leg to stand on. The law can protect you from this.


When I have expressed distaste due to someone copying a design, it's not because they are creating similar jewelry using the same type of supplies. I couldn't care less! It's because somebody is making an exact duplicate of what I have been doing. 

For instance… My Starliter© design was first published in October of 2012. As I explained earlier, it started with a concept sketch, plenty of trial and error, and so on. Two months after it's conception, a person bought a couple of these pieces from me. A year and a half later, they started producing and selling exact copies of the design. This person has now infringed upon my intellectual rights. 
On top of it all, there is also copyright infringement involved, because my design (along with the others) is protected by copyright. Again-- you can do this to any piece you create, and it will be protected if the US Copyright Office deems it to be unique and if nobody else has a copyright on an identical piece. It definitely makes for a stronger case if you have a copyright on an item and someone does infringe upon your rights, but it isn't necessary. The second you create and publish a piece, it becomes YOURS. Again-- that is, if no one else has created the exact piece before you (or similar enough or them to be confused with each other).

My Starliter© design is not an exact copy of a vintage design. I call it vintage-inspired because the starburst within the earring is synonymous of the Atomic and Space Age. It is in the style of traditional vintage confetti lucite designs, but is not exact. It goes well with both vintage and vintage-inspired clothing pieces. I have been collecting and selling Mid-Century jewelry for well over a decade and have never come across anything like it. Therefore, it is my own original design that was merely inspired by the past. I am not duplicating something that has existed before. 

I am certain that the people that are pointing fingers and calling names do not know what it feels like to have created something, only to see someone else replicating the same exact thing and making a profit from it. Most do not even create jewelry, or anything else for that matter. Let me tell you, it's a real punch in the gut. It's heartbreaking. It makes you sad and it makes you very angry. 


I had been commissioned to do a couple of  hoop-style drop earrings a while back and I purchased a commercially available mold to do so. I noticed that they have become popular amongst a few people that are making similar jewelry. I stopped at those two pairs. For one, it's basically oversaturating the market with a particular style of earring. Secondly, I didn't want to use a commercial mold that while unique, wasn't (if that makes sense). I mostly halted any further production because there are others that did it before me, and I don't want to make anyone feel like I am encroaching on their territory. 

Yes, I keep a close eye on others that are creating similar jewelry. Indeed, I do have to make sure no one is infringing upon my rights, but I mostly do it to make sure that I don't make something that could be confused for one of their creations. I strive to set myself apart. Not only to make my business stand out, but also because I don't want to put myself in an awkward situation. 


"There are limitations with the molds and materials! There is only so much you can do with it. It's all going to look the same."


Not really. There are countless methods of doing the same thing. It's just a matter of whether or not the designer is willing to take on that task. While I see a lot of things that look very alike-- to the point where you do not know who made them-- I do see a lot of things that really set the designer apart. Even the person that has infringed upon my rights recently has some really creative and unique designs that set them apart from the rest. I can look at those designs and know who made them. 

"It's like saying there can only be one dress, ever. Or one type of shoes, ever. It's like saying Company X is copying Company Y because they both make dresses."

Yeah, no other earrings except mine. No silver earrings, no gemstone earrings, no star shaped or hoop earrings. Any other confetti lucite--nope, no way! None, just mine!
C'mon… I'm sorry to say, but that's the silliest comparison I've ever heard. By that logic, because ladies have been painted on canvas before, that means anyone can copy the lady painting that you just did and it's totally legal. 

The point is totally being missed! Again, it's not a matter of wanting to be the only one making this type of jewelry. It's a matter of not wanting someone to copy an original design. Personally, I don't care who is doing what, as long as they aren't copying my original work.

It is the designer's responsibility and best interest to not only be knowledgable about copyright and intellectual property laws, but to not infringe upon anyone else's. One has to ask themselves, "Will this design create confusion-- will someone confuse this with a design that was previously done by someone else? Did someone else come up with an identical design before me?" A person has to do their research. In the world of confetti lucite, trust me when I say that everyone is looking at everyone else's stuff…
Any claims of it being a 'free-for-all' are bogus, as well.


In regards to what I mentioned about 'causing confusion'… 

With my particular debacle, I found out about the copyright infringement through friends, customers and models that I work with. The first person to contact me about it thought that I had licensed my design out to someone else and offered congratulatory words. Another person thought I had started up a sister company! They even thought the logos were similar. The others just said, "Hey, someone ripped off your design!" It was identified by several people as mine and caused confusion. If that isn't stating that my rights were infringed upon, I don't know what is. 

Under copyright law a person has a valid case if they can show that there was sufficient copying of the work's original elements. This includes either direct or circumstantial evidence. 
Direct evidence basically means that somebody admitted to copying a design. 
In the case of circumstantial evidence, two things must be proven-- if the alleged infringer had access to the copyrighted work and the similarity between the original copyrighted work and the alleged infringing work. So if you have proof that the person has seen it-- maybe they purchased the work from you and you have a receipt. Or they have left a comment on a photograph of the work on a social media site. Do you regularly interact with this person online and can you prove it? 

Inadvertent copies do occur. As far as colors go, things can be similar. It's totally natural to want to use complimentary colors. 
I had someone coincidentally make something almost exactly the same as my Kookie colorway. I didn't know that they had done so. A week later, they contacted me, apologizing.  They pulled the sale and photos of the jewelry-- even though the shape was different. They did so because they didn't want anyone to think that they were copying my idea. I really, really respect this person for that! Most people wouldn't even admit to that, even if it was done unintentionally. 

For anyone that is questioning anything I am saying in a legal aspect here**, do an internet search for yourself. There is a lot of information out there! Between doing that, conferring with my attorney and other business owners, I was able to get quite educated on this matter. I will say it again-- I feel that it is crucial for anyone that owns any type of business. With the prevalence of the internet in our lives, it opens doors to a new realm of having to protect yourself. It's not always about other independent designers. I'm sure we all know of instances where companies have had original designs and items knocked off by Asian companies. Fake Chanel and Louis Vuitton bags, anyone? Well-known companies such as Claire's and Urban Outfitters have also knocked off jewelry items from small business owners, as well. Big or small, it sucks.

There is absolutely nothing wrong with standing up for your rights, either! It doesn't (and shouldn't) have to be done in the sense of mudslinging to try and get people on your bandwagon and to try and publicly humiliate or ruin a person's business (that in itself can open up a huge legal can of worms). Do not let anyone try and gaslight you, or bully you into thinking that you are wrong, a bad person or have no leg to stand on.



** The preceding text is not legal advice. I am offering up my personal experiences, thoughts and opinions as a copyright holder and jewelry designer.


Starliter
Copyright © 2012 SparkleLux of Palm Springs







2 comments:

Tara Munro said...

The law is the same here in Australia too, and most countries have agreements with each other to protect the rights of the original creator. I'm so glad you have posted this information I'm hoping people will now be much wiser in their choices. You said once that you didn't buy the line that there are only so many colour and style combinations. It gave the me the kick up the bum I needed and now I am delaying making my jewellery so I can develop original (not commercial) molds inspired my own vintage jewellery collection. You do not have to publish this comment, I just wanted you to know how much I was affected by what you said and how it has inspired me to do better. Wishing you continued success.
Kind regards,
Tara (Lustaluxe)

Miss Tayva said...

Thanks for your input, Tara!

I really do hope that people will read this and get a sense of what's right and what's wrong. There's a lot of misinformation out there and I really hope that people can learn from my post and be inspired to work harder and more ethically.

Good luck to you in your endeavors!