Be honest, did you know Jewelry designs can be copyrighted? Yes, they can. With the Covid virus forcing people to "lockdown" and with layoffs happening creative entrepreneurs are now GOING FOR THEIR LIVE DREAMS, and for some, that means creating and designing and/or selling jewelry. There are some things you should consider, and this blog will help you with that. If you are involved in a dispute involving jewelry copyrights (ex. sued by L.A. Gem & Jewelry), we can help.
Jewelry Copyright Law Firm - What you need to know.
Honestly, I do not know a person who does not wear some form of jewelry. For example:
- Ankle bracelets
- Tie clips
- Belly dance bracelets
- Wedding rings
These are just some examples. If you create a unique jewelry design you can seek to obtain federal copyright protection for your creative works. If you SELL jewelry, you want to make sure you are NOT infringing on another companies copyrights. This is not always an easy task. Sometimes you buy things from distributors only to find out they were counterfeit or infringing on another company's creative registered copyrights. This can lead to legal trouble most people do not want, and did not expect. One company known for filing lawsuits is L.A. Gem & Jewelry. If you received a demand letter from Milord & Associates, call us to discuss your legal rights. They can be aggressive in seeking settlements including DEFAULT JUDGMENTS over 100k if you do not answer the complaint and they take a default.
We can represent Defendants in responding to a legal demand letters, responding to subpoenas, arbitration or litigation in the federal courts and represent jewelry creators whose rights are infringed. Having a intellectual property law firm experienced on "both sides of the fence" is beneficial to you and your company.
If your are involved in an Etsy account take down case (or other online store) due to infringement we can also help. Call us at (877) 276-5084 for a free initial consultation.
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.”
L.A. Gem & Jewelry Default Judgements
If you received a summons and complaint from LA Gem & Jewelry for MOM PENDANTS or "love you to the moon and back" (a favorite infringement lawsuit of theirs) call us to discuss. It is EXTREMELY important to file a timely response (either a motion to dismiss the complaint, for example, on jurisdictional grounds) because if not, you could be hit with a large DEFAULT JUDGMENT that will send them into collection mode and a potential "debtors exam" where their attorneys want to find out "where the money is" so they can seek to collect on their judgment. Not a fun place to be. Here is one case where this happened:
L.A. GEM & JEWELRY DESIGN, INC., Plaintiff, v. ECOMMERCE INNOVATIONS, LLC dba INSPIRED SILVER; ENDOFRETAIL, INC.; DAVID STRAGER; and DOES 1-10, Defendants.
United States District Court, C.D. California.
April 27, 2017.
Applicable Law: 17 U.S.C. § 101
Cause: 17 U.S.C. § 101 Copyright Infringement
Nature of Suit: 820 Copyright
In this case, the Defendant did not answer the complaint and a judgment of $150,000 plus attorney fees over 6k was entered.
JUDGMENT PURSUANT TO ORDER ON PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
BEVERLY REID O'CONNELL, District Judge.
The Court having read and considered the Motion for Default Judgment Against Defendants American Galactic, LLC dba Magic Metal Jewelry and Eric Baumbach (collectively "Defendants") submitted by Plaintiff L.A. Gem & Jewelry Design, Inc. ("LA Gem"), issued its Order dated June 6, 2016 (ECF No. 27), and good cause appearing therefore:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1. L.A. GEM & JEWELRY DESIGN, INC. (Plaintiff or LA Gem) is the owner of U.S. Copyright Registration number VA 1-912-320 titled LA Rocks I Love You to the Moon and Back: 448011, issued on November 21, 2013 (Moon Pendant), which registration is valid and enforceable;
2. LA Gem is the owner of U.S. Copyright Registration number VA 1-889-369 titled LA Rocks I Love You to the Moon and Back: 451711CL, 451713..., issued on November 25, 2013 (Mom Pendant No. 1), and its derivative Design No. 453547 (Mom Pendant No. 2), which registration is valid and enforceable;
3. Default Judgment is GRANTED and ENTERED against AMERICAN GALACTIC, LLC dba MAGIC METAL JEWELRY and ERIC BAUMBACH (Defaulting Defendants) pursuant to the prayer of the Complaint on each of Plaintiff's claims as set forth in the Complaint, including its claims for
(i) willful copyright infringement of the Moon Pendant and Mom Pendant copyrighted designs in violation of 17 U.S.C. § 501; and
4. The Defaulting Defendants created, designed, purchased, imported, distributed, offered for sale and/or sold certain jewelry products bearing designs that willfully infringed the Moon Pendant and Mom Pendant copyrighted designs;
5. The Defaulting Defendants, their officers, agents, servants, employees and representatives and all other persons, firms or corporations in active concert or participation with it, who receive notice of this Order, are hereby enjoined, restrained, and prohibited from (click here to learn more about injunctions):
(a) manufacturing, producing, selling, distributing or otherwise disposing of any jewelry that is in Defaulting Defendants' possession, custody, and/or control that is substantially similar to LA Gem's copyrighted Moon Pendant and Mom Pendant designs; and(
b) engaging in any other activity constituting an infringement of LA Gem's copyrights of the Moon Pendant and Mom Pendant designs;
6. Pursuant to the Copyright Act, 17 U.S.C. § 503, and the equitable powers of this Court, Defendants are ordered to destroy all infringing copies of the Moon pendant and Mom Pendant Designs and all molds by which such infringing copies were produced.
7. The Defaulting Defendants are liable to Plaintiff in the amount of $150,000.00 in statutory damages, plus post judgment interest calculated in accordance with 28 U.S.C. § 1961(a), as a result of the Defaulting Defendants' willful copyright infringement of the Moon Pendant and Mom Pendant copyrighted design pursuant to 17 U.S.C. § 504(c);
8. The Defaulting Defendants are liable to Plaintiff in the amount of $6,600.00 for Plaintiff's attorneys' fees pursuant to 17 U.S.C. § 505 and Local Rule 55-3.
IT IS HEREBY ORDERED
Defenses you can raise
Innocent infringement is a defense commonly raise to a L.A. Gem & Jewelry "moon and back" cases. Most people have no idea of the intricacies of copyright law and rely on third party sellers NOT to sell them infringing or counterfeit goods. In some cases, you may want to see if you can recover on the grounds of "idemnity" from a third party who sold you an "infringing bill of goods" and caused you to end up in federal court fighting to save your company from bankruptcy or a legal judgment that is not affordable.
RELATED – Architectural Designs can also be protected by Copyright. Here is another clip pulled directly from the United States Copyright Office Form:
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 through our contact form. Attorney Steve® was formerly appointed by the Mayor of Phoenix to serve on the prestigious Camelback planning board (yes, the same Camelback on the Here and Now MONOPOLY BOARD).
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”
Here are a few more snippets from a typical jewelry infringement complaint (lawsuit):
“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.
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.”
As noted above, failing to respond to their complaint could result in a large monetary judgment that you will have a hard time reversing or setting aside as we call it in the legal profession.
There are limits to protection for jewelry under federal copyright caselaw
Facing a jewelry infringement lawsuit as a defendant does not mean the Plaintiff has automatically won. There are defenses you can raise and limits to copyright protection for jewelry items. For example, in Cosmos Jewelry Ltd. v. Po Sun Hon Co., 470 F. Supp. 2d 1072, 1082 (C.D. Cal. 2006) (9th Cir. Mar. 24, 2009) the 9th circuit court held that you must separate out the copyrighted portion from the non-copyrightable elements of the jewelry:
“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.”).
If you received a demand letter or notice of a lawsuit from Milord and associates or other law firm, call us for a free initial consultation.
What is the test for 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 "John Doe Defendants" 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
When you are faced with a federal court lawsuit, it is not fun. We know it is very stressful. We have represented over 250 clients in state and federal court lawsuits since our founding in 2004. Attorney Steve® will handle your case, and our past client reviews are 5 Star STERLING so to speak.
We have substantial federal court experience and provide tenacious but ethical legal representation for both Plaintiffs and Defendants in need of Jewelry legal counsel. Call us for a no cost initial consultation at (877) 276-5084 or email us through our contact form.