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[Jill Bailey]

I started creating vintage style jewelry this year and started selling on ebay and on my site. On my site I have the whole disclaimer that the designs are mine, and that they cannot be reproduced. I noticed 2 girls selling copies (bad copies) of my pieces - some with my descriptions, jewelry card back grounds and photos.

Is there a way i can protect my collection? I have a catalog of 2000 items coming out- and i dont want to make life easier for them. What it comes down to - is that they dont have creativity, or design skills...

Can i create a copyright to protect an entire collection - EX: J Bailey Summer 2006 Collection
which will protect all of the pieces under that description?

Any advice would be so helpful.

warmest regards,
J Bailey

[RMissimer]

I must start by saying I am not an attorney, nor do I represent myself as one.  (Standard disclosure of a law student, right).  

Copy right does not need to be filed to exist.  To sue, one must have filed for a copyright before the court filings.  So, for the copies, file, and sue.  That simple.

Be advised though,  you need to have some level of proof that they were aware of your design before they created theirs.  Copyright protection is not exclusive.  If they did not base their work on yours,  then they have not infringed.  Without proof that they copied, if gets more expensive to litigate, but it is possible.

Summary...  If you believe that they copied your work,  file for copyright protection,  and send them a warning letter, after consulting with a copyright attorney.

[JSonnabend]

To sue, one must have filed for a copyright before the court filings.  So, for the copies, file, and sue.  That simple.

That's dangerously misleading.  In many jurisdications (if not most), merely filing for registration is not sufficient to commence an action; you must actually receive your certificate of registration first.  Thus, the "don't file until you want to sue" approach may have significant downside in terms of time (and cost if you expedite your application).  

- Jeff

[Isaac]

Without proof that they copied, if gets more expensive to litigate, but it is possible.

Without proof of copying, the described infringement could not be successfully litigated.   Period.

Copying is almost never proved with direct evidence.  Instead evidence is offered to show that the defendant had access to the alleged original (as you suggested) and that the similarities between the original and the alleged copy are such that copying is the most likely explanation.  

The defendant in turn can rebut the inference of copying in a number of ways, or can offer affirmative defenses such as fair use.

In addition to Jeff's caveat, there is also the issue that forgoing registration until  infringement happens can cost you the right to sue for statutory damages.   In a situation involving infringers who do not keep records, an accounting for real damages might be unobtainable.

One thing that crossed my mind while reading the original post is that the OP says they are creating "vintage style jewelry".   Vintage sounds like the antithesis of "original".    To the extend that artisitic elements are copied from older designs, those elements might not be protectable by the OP.

[RMissimer]

Response from a filing doesn't take all that long.  It will be a lot faster than the back and forth negotiations prior to litigation.  So, I stand on my comment.

As for proof of copying.  I have seen locally here, several litigations that were based soley on contact with the other party.  One of the cases, they artist gave a copy to a printing company, and they out right stole the work.  That was a fast settlement.  The artist filed, and then threatened to sue.   So, again I stand on my comment.

[Isaac]

Response from a filing doesn't take all that long.  It will be a lot faster than the back and forth negotiations prior to litigation.  So, I stand on my comment.

It takes months (maybe six or more) to get registered although I think there is an expedited procedure.

As for proof of copying.  I have seen locally here, several litigations that were based soley on contact with the other party.  One of the cases, they artist gave a copy to a printing company, and they out right stole the work.  That was a fast settlement.  The artist filed, and then threatened to sue.   So, again I stand on my comment.

From your description, it sounds like the elements for proving copying were present.   Evidence of giving the copy to the printing company => proof that the printing company had access.   Although you did not state any facts alleging copying, isn't that what you meant by "stole the work"?   Further, this description of yours does not involve litigation; just threats and a settlement.

Perhaps I'm missing your point.  

[RMissimer]

Hi Jim,

YES, agreed there was definate proof in the printing case.  The suit was filed but not served.  That happens allot up here.  Allows the plaintiff a chance to resolve the issue and remove the case from the docket with chance of response.

As you know, sending a letter to the infringer gives them the chance to file suit in their jurisdiction (a definate negative).  So, the artist had filed the suit here to control venue, but did not serve the defendant (because it was settled).

Proof of contact is either a) not provable at all,  or b) really easy to prove.  There doesn't seem to be must in between.  The alternative is a "comparable art" which is costly, and really hard to win.

I assumed by his comments that he had some basis to his claims that they were copies.  Especially the part about the "descriptions, jewerly card back grounds and photos."

[RMissimer]

Let's address one other question he had.

Can we agree that he CAN NOT combine the works into a set and copyright them.  If he does, I believe that he must protect it as a set -or- prove that the taking is significant part of the collection.

It would be like being an architect and taking pictures of your buildings.  Having them as a set does not protect the building design,  just the set of photographs.  So, someone else taking pictures of the same building would not be protected.

Where if the photos were submitted as a single filing for the architecture of the building,  then the building design would be protected.

This is also like recording music, instead of submitting it in sheet form.  It is my understanding that sound recording only protects the sound recording,  and not the content.  So a different rendition of the song might not be protected if not in sheet music format.

Comments will be appreciated.

[Isaac]

Let's address one other question he had.

Can we agree that he CAN NOT combine the works into a set and copyright them.  If he does, I believe that he must protect it as a set -or- prove that the taking is significant part of the collection.

I don't have any personal knowledge, but macktheknife who responded to this question in another thread used to work at the copyright office and indicated that collections of jewelry can be registered.

I think there are some limits to protecting an individual item by registering a collection, but I don't think the fact that an individual item is a small part of the collection is quite the issue you sugggest when the individual parts are authored by the same person who registers the collection.  There is not a percentage rule for excusing infringement.   Copying one item of a set does not seem likely to me to be considered de minimis even if there are 2000 items in the set.

You can register for both the copyright in the performance and the copyright in the music using a single registration supported by a submission of a recording.   So if your analogy is correct (and I don't quite understand the analogy) it would seem to argue against your position.

[JSonnabend]

Response from a filing doesn't take all that long.

What's "all that long"?  In my experience, the wait is six months or more.  What's your experience?

- Jeff

[RMissimer]

I took a minute and looked at the Copyright office site, and as I was suggesting you can register the art as Jewelry (individually) or as a photo set to protect the photos themselves.

When you file to protect jewelry then you have to meet their requirements for ewach piece.  (Using form VA)

If you want to protect the photos (as described above)  that is protecting only the photos themselves.

[Isaac]

I took a minute and looked at the Copyright office site, and as I was suggesting you can register the art as Jewelry (individually) or as a photo set to protect the photos themselves.

When you file to protect jewelry then you have to meet their requirements for ewach piece.  (Using form VA)

Take a peek at the following rule (Courtesy of mactheknife)

37 CFR 202.3(b)(3)(i).  

The regulation describes circumstances under which a collection can be registered as a single work.  

[RMissimer]

The section you refer to includes the following statement.  THe statement appears to NOT INCLUDE Jewelry.

Class VA: Works of the visual arts -
This class includes all published and unpublished pictorial, graphic, and sculptural works. Examples: Two dimensional and three dimensional works of the fine, graphic, and applied arts; photographs; prints and art reproductions; maps, globes, and charts; technical drawings, diagrams, and models; and pictorial or graphic labels and advertisements.

[Isaac]

The section you refer to includes the following statement.  THe statement appears to NOT INCLUDE Jewelry.

Class VA: Works of the visual arts -
This class includes all published and unpublished pictorial, graphic, and sculptural works. Examples: Two dimensional and three dimensional works of the fine, graphic, and applied arts; photographs; prints and art reproductions; maps, globes, and charts; technical drawings, diagrams, and models; and pictorial or graphic labels and advertisements.

Go to this page
http://www.copyright.gov/register/visual.html

Then follow the link to "examples" of visual arts.  You'll find "jewelry designs" among other things.

[RMissimer]

I also found the following link of the web:

http://www.jewelersresource.com/Business/Studio/Copyright.html

They tend to agree that the set can be combined if there is some relationship between the items of the collect.