My last post on jewelry copyrights was very popular so I asked Dawn Newton, a lawyer at Fitzgerald, Abbott and Beardsley LLP to write up a few clarifying guidelines. I am printing her words below because they are clear and concise:
Unlike fashion designs, jewelry designs may be copyrighted under current law. (Those who are interested in the protectibility of fashion designs may wish to follow the status of the Design Piracy Prohibition Act which is currently pending before the United States Senate as Senate Bill 1957.) To qualify for copyright registration, they must only be an original work of expression, in fixed tangible form.
Artists often wonder what amount of originality is required in order to obtain a copyright registration. The answer is very little, provided that the inspiration for a design is not another copyrighted work. A jewelry designer may create a stylized impression of a flower, a bird, or a pinecone, inspired by those things in nature, and even if the resemblance is similar, as long as there is a small amount of artistic inspiration, it is sufficiently original to qualify for copyright registration.
But there is a significant difference between obtaining a copyright registration for your work and preventing anyone from creating their own work that bears any similarity. If your inspiration comes from nature, or anything in the public domain, other designers are also free to draw from those sources of inspiration, and it can be difficult to establish that a designer copied your design if that design is just a faithful replica of a natural phenomenon. The more unique your design in some aspect, the better the likelihood that you can distinguish your product from others and, if you choose to make a claim for copyright infringement, you have a better chance of succeeding.
The procedure for registering a copyrighted design is simple. A jewelry design is registrable as a work of visual art. A designer seeking to register a design should download a copyright application form through the “electronic Copyright Office” or eCO. You will need to set up an account, then proceed through the steps online, selecting “Work of the Visual Arts” and then filling in the pertinent information required by the form including a title for your design, the date of publication, author’s name and type of work (jewelry design), the claimant of the work (often the author, but if the author transferred ownership of the copyright, it can be a different entity), any limitation of the claim, and the name of the person the Copyright Office should communicate with about the application. The fee for submitting the application is $35.
One aspect of the application that is sometimes confusing for designers is the date of publication. While there can be exceptions to the rule, in general, a jewelry design has been published on the date it is offered for sale or free distribution to the public, not on the date a sketch or idea is first fully realized in its sculptural form.
Another element that is sometimes confusing is the term of art “work made for hire” when the party claiming ownership of the design was not the one who came up with it. The easiest way to determine if a design was a work made for hire is whether you employed the designer as a W-2 employee. If the designer was your employee, the design is a work made for hire and it belongs to your company. On the other hand, if you collaborated with the designer and they were an independent contractor or third party vendor, they own the copyright in the design unless they executed a contract in connection with the design that specifically conveys those rights to you.