Jewelry Copyright infringement is very common. In the face of plagiarism, it is hard to decide when to take expensive legal measures and when to let it slide. If you do decide to take action, what are your options? I asked Dawn Newton from Fitzgerald, Abbott and Beardsley LLP to walk me through the process:
As a first step, you might have your lawyer issue a Cease and Desist letter alleging copyright infringement and pointing out that copyright infringement can be subject to statutory damages up to $150,000 per infringement. For small infringers, the threat of litigation on this scale can be ample discouragement. Large jewelry designers routinely participate in large scale litigation and unless they immediately perceive liability, they will not necessarily be swayed simply by a cease & desist letter. In some cases, even if they know that they are in the wrong, they may require a company to sue if it is very small, because they may (often accurately) assess that the likelihood that the claimant actually has the money and energy to sue them is slim.
Copyright law is set up so that it is not easy to lose your rights. Failing to pursue one infringer will not void or eliminate your rights entirely, but it may result in a valid defense by the infringer you fail to pursue. Designers who want to protect themselves should take prompt action against non-trivial infringement, if they wish to preserve their rights against the infringing designers.
You should budget a minimum of a couple thousand dollars if you want to hire an attorney to help you send a cease & desist letter. This is because a good intellectual property attorney will spend some time interviewing their client, looking at the designs, and asking questions about the dates of production and the origins of the design, before crafting a letter. You should also anticipate involving your attorney in any subsequent negotiation with the infringer.
To read our entire blog series on copy cats and copyrighting your jewelry, please click on our plagiarism tag on the menu bar to the right.
In the U.S., the statutory damages mentioned in this post are only available if the copyright is registered with the U.S. Copyright Office prior to the act of infringement. Attorneys should not suggest that statutory damages are available for unregistered works. The same is true of attorney’s fees. Owners of registered copyrights may be awarded attorney fees, but it highly unlikely for unregistered works. Finally, (referring to the plagiarism reference) plagiarism and copyright infringement are two different things. Plagiarism involves claiming a work to be your own that is not your own, regardless of whether the copied work is protected by copyright or in the public domain. Plagiarism might give rise to an ethics issue or a legal issue of fraud, but it is not the same thing as copyright infringement.
Comment by Barbara Murphy — February 4, 2010 @ 2:45 pm