Copyright in Jewelry Designs – Infringement Lawsuit Updates. L.A. GEM & JEWELRY DESIGN, INC., a California Corporation, Plaintiff, vs. MICHAELS STORES, INC., a Delaware Corporation; HALCRAFT USA, INC., a New York Corporation; BARBARA WALLACH, an individual; ALFRED WALLACH, an individual; and DOES 1 through 10.
Yes, if you create a unique jewelry design you seek to obtain federal copyright protection for your creative works. This blog discusses one company that is not afraid to assert its rights in a federal copyright action. If you received a demand letter from Milord & Associates, call us to discuss your legal rights. We can represent defendants in responding to a legal demand letter or litigating in the federal courts. If your are involved in an Etsy account take down case we can also help.
Can you protect your jewelry designs with copyright registration?
Yes. as a matter of fact you can. According to the United States Copyright Office jewelry can be protected as a “Pictoral, Graphic or Sculptural Work” (See Form VA). VA stands for “visual arts” and is described on the form as:
“Copyright in a work of the visual arts protects those pictorial, graphic, or sculptural elements that, either alone or in combination, represent an “original work of authorship.”
The statute declares: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
The Form VA goes on to note a few examples of works that may qualify for copyright protection:
“Nature of This Work: Briefly describe the general nature or character of the pictorial, graphic, or sculptural work being registered for copyright.Examples: “Oil Painting”; “Charcoal Drawing”; “Etching”; “Sculpture”; “Map”; “Photograph”; “Scale Model”; “Lithographic Print”; “Jewelry Design”; “Fabric Design.”
“Jewelry designs: 3-dimensional designs applied to rings, pendants, earrings, necklaces, and the like.”
Fun fact – Architectural Designs can also be protected by Copyright. Here is another clip pulled directly from Form VA:
Architectural Works: Copyright protection extends to the design of buildings created for the use of human beings. Architectural works created on or after December 1, 1990, or that on December 1, 1990, were unconstructed and embodied only in unpublished plans or drawings are eligible. Request Circular 41, Copyright Claims in Architectural Works, for more information. Architectural works and technical drawings cannot be registered on the same application.
If you are looking to seeking copyright protection for your architectural works, contact us at the number above or below.
Allegations from the L.A. Gem and Jewelry Design complaint filed in federal court central district of California.
Here are some allegations set forth in the case which you can find on the FEDERAL PACER ONLINE (see Case 2:16-cv-06998-TJH-JEM)
“LA Gem is informed and believes, and on that basis alleges, that Defendants Does 1 through 5, inclusive, are manufacturers and/or vendors of jewelry, and have manufactured and/or supplied, and/or are manufacturing and/or supplying, jewelry improperly incorporating LA Gem's copyrighted design(s).
“Defendants' copyright infringement has caused, and will continue to cause LA Gem to suffer substantial injuries, loss, and damage to its proprietary and exclusive rights to the copyright in LA Gem's Moon Pendant and further, has damaged LA Gem's business reputation and goodwill, diverted its trade, and caused loss of profits, all in an amount not yet determined. In addition, LA Gem is entitled to receive the profits made by Defendants from their wrongful acts pursuant to 17 U.S.C. § 504. Alternatively, LA Gem is entitled to recover statutory damages, on election by LA Gem in an amount of up to $150,000 per copyright registration.“
Allegation about copyright infringement of the “Moon Pendant”
“LA Gem is informed and believes, and thereon alleges, that Defendants, and each of them, knowingly induced, participated in, aided and abetted, and resultantly profited from the illegal reproduction, importation, purchase, distribution, and/or sale of products bearing LA Gem's Moon Pendant as alleged in this Complaint. 31. LA Gem is informed and believes, and thereon alleges, that Defendants, and each of them, are vicariously liable for the copyright infringement alleged in this Complaint because they had the right and the ability to supervise such infringement and because they had a direct financial interest in the infringing conduct.”
Here is a partial list of what the Plaintiff is seeking as relief in the case:
“That the Court enter a judgment against Defendants that Defendants have infringed the rights of LA Gem in LA Gem's federally registered copyrights under 17 U.S.C. § 501. B. That the Court issue a Preliminary Injunction enjoining and restraining Defendants and their respective agents, servants, employees, successors and assigns, and all other persons acting in concert with or in conspiracy with or affiliated with Defendants, from:
i. manufacturing, producing, advertising, selling, distributing, destroying, altering, or otherwise disposing of any jewelry that is in the possession of Defendants that is substantially similar to LA Gem's Pendants;
ii. destroying any documents, electronic files, wax models, molds, or any other tangible object pertaining to the copying, reproduction, manufacture, duplication, distribution, or advertisement of any such jewelry; and,
iii. engaging in any other activity constituting an infringement of LA Gem's copyrights of LA Gem's Moon Pendant.”
There are limits to protection for jewelry under federal copyright caselaw
In Cosmos Jewelry Ltd. v. Po Sun Hon Co., 470 F. Supp. 2d 1072, 1082 (C.D. Cal. 2006), aff'd, No. 06-56338, 2009 (9th Cir. Mar. 24, 2009) the 9th circuit court held that you must separate out the copyrighted portion:
“An individual cannot get copyright protection for elements of expression that inevitably follow from the idea of natural phenomena (no copyright protection for elements of expression in stuffed dinosaur dolls resulting from “the physiognomy of dinosaurs”). There must be some “distinctive” design elements not derived from characteristics inherent in the naturally occurring entity. (“Although the amount of creative input by the author required to meet the originality standard is low, it is not negligible. There must be something more than a ‘merely trivial' variation, something recognizably the artist's own.”).
What is the test for copyright infringement?
The case cited above discussed what a Plaintiff needs to prove to carry the BURDEN OF PROOF on the issue of willful copyright infringement:
“After omitting these “unprotectable” elements, the Court concludes that the only copyrightable aspects of the Cosmos plumeria designs are the minute characteristics of the blossom petals, the arrangement of blossoms and other flourishes in different variations on the “multi-blossom” pendants, rings, earrings, etc., and the particular “mixture” of sand used in producing the sand-blast finish. We do not mean to suggest that Satava has added nothing copyrightable to his jellyfish sculptures. He has made some copyrightable contributions: the distinctive curls of particular tendrils; the arrangement of certain hues; the unique shape of jellyfishes' bells; Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 110 (2d Cir.2001) (“originality in jewelry design inhered in the ways plaintiff ‘recast and arranged' standard elements.”). Thus, Cosmos can prevail on its copyright claim if it can prove that Defendant Hon, having had access to its designs, produced plumeria jewelry that is sufficiently similar with respect to the particular protected characteristics indicated above.
2017 Lawsuit Update
A new case was filed in the Central District of California [2:2017-cv-06538]. Here is one allegation I pulled from the complaint:
“LA Gem is informed and believes, and on that basis alleges, that Defendants Does 1 through 5, inclusive, are manufacturers and/or vendors of jewelry, and have manufactured and/or supplied, and/or are manufacturing and/or supplying, jewelry improperly incorporating LA Gem's copyrighted design(s) (as hereinafter described) without LA Gem's knowledge or consent, or are otherwise liable for secondary copyright infringement. The true names, whether corporate, individual, or otherwise of Does 1 through 5, inclusive, are presently unknown to LA Gem, and therefore, are being sued by such fictitious names, and LA Gem will seek leave to amend this Complaint to include their true names and capacities when the same have been ascertained.”
Contact a Copyright Lawyer to discuss your Jewelry Infringement Case
We have substantial federal court experience. We have defended companies from across the United States in a wide variety of copyright infringement actions. Call us for a no cost initial consultation at (877) 276-5084.