Copyright Infringement – Jewelry Designs [Dealing with Stella and Dot Demand Letters]
Selling jewelry is a multi million if not billion dollar business. Men and women are purchasing jewelry at very high levels. Moreover, the business of jewelry is booming with many people starting their creative businesses out of their homes, garages and small offices. Some will start by purchasing product wholesale on websites like AliExpress and may take their jewelry (purchasing a large amount of inventory) then either re-selling as is, or sometimes creating their own designs by transforming the original art (ex. bracelet, charm, ear ring, necklace) into something totally new.
In these cases, the new design may be something that could be worthy of federal copyright protection (which is nice to help a company create an IP portfolio that may have value if the small business entrepreneur builds and eventually wants to sell the business as part of an exit strategy). In other cases, you may find that large jewelry companies see pictures of their jewelry on your website, or in advertisement and you may receive either: (a) a cease and desist letter (b) DMCA take down notice, (c) notice of copyright infringement or (d) a subpoena or lawsuit.
Our law firm can assist both Plaintiff's and Defendants who are dealing with federal copyright infringement lawsuits or demand letters, and we can assist designers in protecting and enforcing their copyrighted works. One IP law firm you might have received a cease and desist letter from is Reed Smith. The letter may ask you for an inventory of product, how much you have sold, and may seek attorney fees. Once you give them information they are requesting, this could lead to a civil court lawsuit for federal copyright infringement. Damages up to $150,000 per infringed piece of jewelry could be sought. This is why it is important to have legal counsel instead of trying to handle this on your own.
Can jewelry be copyrighted?
Yes. Many people are surprised to learn this. According to the United States Copyright Office jewelry can be protected as a “visual art” along with a host of other items:
Works Commonly Registered In This Category:
Advertisements (visual / photography)
Architectural Works Artwork (2D, 3D)
Board Games (visual aspects)
Cartography (maps / globes)
Catalogs (visual aspects)
Greeting Cards Labels (visual aspects)
Prints / Reproductions
Sample language from Stella and Dot infringement letter
You may receive a demand letter from a corporate lawyer at Stella and Dot (or other jewelry company, there are many) and the letter may point out the following:
- You are infringing their jewelry degigns
- You are subject to an injunction
- You may be sued for willful copyright infringement seeking up to $150,000 per design infringed (we talk about copyright infringement damages in this important video)
- You may be subject to destroying all your inventory
- You may be required to let them know all the profits you made (and they may be requesting that you turn over your financials)
- You may be charged with posting infringing pictures or videos on your website or in advertising that needs to come down.
- You may be threatened with a federal court lawsuit
This is just a sample of the types of things that could be alleged or demanded in a letter. Obviously, as a business owner this could be very alarming and you may be facing a lawsuit and the loss of profits, and possibly your business venture could be at risk forcing you potentially into a bankruptcy.
Click here to watch Attorney Steve explain jewelry copyright
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What is the “transformative” use defense?
In some cases involving jewelry designs, an artist or designer may completely transform a piece or jewelry and make it into something completely different than the original work. This could avoid a claim of copyright infringement under the “fair use defense.” This defense looks to 4 factors to determine whether or not the defense should apply. One of these four factors is the “purpose and character” of the use as noted in Morris v. Young, 925 F. Supp. 2d 1078, 1084–85 (C.D. Cal. 2013)”
a. The Purpose and Character of the Use The first factor in the fair use inquiry is “the purpose and character of the use,” including whether it is of a commercial or non-commercial nature. Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). At the outset, it is undisputed that Young created the Accused Works, at least in part, for a commercial purpose, and that he received approximately $8,940 from the sale of all of the Accused Works. The commercial nature of the use therefore weighs against a finding of fair use. See Monge, 688 F.3d at 1177.
The central purpose of the first factor, however, is whether the new work merely “supersedes” the objects of the original creation or instead is “transformative” in that it “adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning, or message.” A mere difference in purpose, however, “does not necessarily create new aesthetics or a new work that ‘alters the first work' ” such that it is transformative.
“A use is considered transformative only where a defendant changes … or uses the plaintiff's copyrighted work in a different context such that the plaintiff's work is transformed into a new creation.” Wall Data Inc. v. Los Angeles Cty. Sheriff's Dep't, 447 F.3d 769, 778 (9th Cir.2006). Although a transformative use is not necessary for a finding of fair use, “the more transformative the new work, the less will be the significance of the other factors that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579, 114 S.Ct. 1164.
One of the key factors in looking at this potential defense is whether the new jewelry looks just like the original piece, or whether visually speaking it looks totally different. If a reasonable viewer would look at both pieces of jewelry and conclude they were substantially similar or from the same designer, this will obviously make this defense much less likely to prevail. If you think this is a potential defense, you should discuss with infringement counsel.
Do I need to hire a intellectual property law firm to assist?
This can depend on the type of letter you received. Sometimes a jewelry infringement letter will be more along the lies of “cease and desist” which may be easier to deal with and merely stopping selling the item on your website or blog may be sufficient (its important to have a IP law firm help you make this determination). Other times the letters could be demanding to see financials, tax returns, profit information, etc. In these cases, it is most important to seek legal counsel. Many smaller companies fear contacting a law firm due to large attorney fees, but it should be noted that in many (non-litigation) cases, we can often structure a low predictable flat rate legal fee that makes having copyright counsel affordable and accessible.
We can help jewelry designers protect their copyrighted designs
If you are a small to medium sized business owner (under 500 employees), call us to discuss our IP protection and enforcement services.
Contact a copyright attorney
Our firm is experienced in copyright cases. We have helped many people who receive legal demand letters due to alleged infringing software, movies, pictures, jewelry and other copyrighted content and call help with Etsy legal issues and L.A. Gem and Jewelry Design cases. We have a vast amount of federal court experience. We can also help business owners who are seeking to protect their valuable intellectual property. Contact us to discuss your case at (877) 276-5084. As noted above, we offer predictable flat rate fees for many non-litigation cases.