1 00:00:00,000 --> 00:00:11,360 Welcome to the GuiltTrips podcast. I'm your host, Kendra Lockhart. As a goldsmith and 2 00:00:11,360 --> 00:00:17,560 gemologist, I'll be speaking 24 carat on all things jewelry, metals, and gems. Join 3 00:00:17,560 --> 00:00:24,080 me plus a few friends to demystify both materials and designs as your private jeweler. Let's 4 00:00:24,080 --> 00:00:35,320 tune in on these topics and get golden. Today's topic is a little bit tricky because it's 5 00:00:35,320 --> 00:00:41,120 the one that we're all trying to avoid but also skate a fine line of not necessarily 6 00:00:41,120 --> 00:00:48,440 defining. What I mean when I titled this seeing double is the circumstance of being copied. 7 00:00:48,440 --> 00:00:52,560 While the jewelry industry deals with this a lot, I definitely have to handle it on a 8 00:00:52,560 --> 00:01:00,320 daily basis, the counterfeiting and the knocking off of recognizable designs. What do you do 9 00:01:00,320 --> 00:01:06,840 when you're an independent artist? Now we've seen people get poached on places like Etsy 10 00:01:06,840 --> 00:01:14,080 or when at an art show, especially a well-publicized one, there are certainly quote-unquote scouts 11 00:01:14,080 --> 00:01:21,840 going to see somebody else's up-and-coming or big idea or next collection so that they're 12 00:01:21,840 --> 00:01:27,880 doing the heavy lifting and that person doesn't really have to be at the drawing board or in 13 00:01:27,880 --> 00:01:35,920 the idea factory or concepting. So I'll be covering when using a well-known idea work 14 00:01:35,920 --> 00:01:43,120 in jewelry, what we're dealing with as far as the inspiration versus imitation, how manufacturing 15 00:01:43,120 --> 00:01:49,440 tackles this topic, the legality that may or may not be exactly what you need to know. 16 00:01:49,440 --> 00:02:01,160 And then lastly, the great lawsuits. So here we go. 17 00:02:01,160 --> 00:02:06,480 Being copied is something that I personally dealt with as a creative since I was probably 18 00:02:06,480 --> 00:02:12,640 five or six years old. I remember losing a friendship because somebody had profound 19 00:02:12,640 --> 00:02:19,840 envy and jealousy over my project being better than theirs. Her reaction was so over the top 20 00:02:19,840 --> 00:02:26,000 that I should have known the lengths that people are willing to go to to protect an ego that 21 00:02:26,000 --> 00:02:33,160 is uncreative or has poor execution around their artistry or simply can't stand when 22 00:02:33,160 --> 00:02:39,360 someone else gets the attention they so desperately crave. Now there's a time and place to be 23 00:02:39,360 --> 00:02:46,000 flattered. School or the formative years wasn't necessarily my zone. I was madly in love with 24 00:02:46,000 --> 00:02:52,360 the art of when genius hits, refining my skills and abilities and having a finished product 25 00:02:52,360 --> 00:02:57,880 or demonstration or proof of what was in my imagination that came out of me. Once I stepped 26 00:02:57,880 --> 00:03:03,240 into the professional arena, it got a little clearer for me. For example, my first design 27 00:03:03,240 --> 00:03:09,560 job I was asked to come up with sketches for a three stone engagement ring, something modern, 28 00:03:09,560 --> 00:03:13,920 but it had to have an innovative element to it. The client was confidential or so my 29 00:03:13,920 --> 00:03:19,320 boss told me who happened to also be the owner. Little did I know that I would be designing 30 00:03:19,320 --> 00:03:24,840 his fiance's ring and probably didn't get any credit for it, but it certainly said 31 00:03:24,840 --> 00:03:32,140 plenty for my confidence, my self esteem and my portfolio to be able to say I designed 32 00:03:32,140 --> 00:03:37,320 the owner's engagement ring. No extra credit was needed nor was it being actively sought 33 00:03:37,320 --> 00:03:44,160 by me. Later on in my apprenticeship, we were asked to come up with sketches. It was supposed 34 00:03:44,160 --> 00:03:50,080 to be part of the quote unquote exercise assigned by the owner. There were three of us that 35 00:03:50,080 --> 00:03:56,160 were actively on the workbench. I distinctly remember one assignment where there was an 36 00:03:56,160 --> 00:04:02,680 odd cut stone and we all had to come up with 20 ideas for it. The owner didn't care for 37 00:04:02,680 --> 00:04:07,640 any of our works, which was interesting because wasn't this just to make sure that we stayed 38 00:04:07,640 --> 00:04:15,760 loose and fluid and able around concepting or was there an agenda called Hey Minions? 39 00:04:15,760 --> 00:04:19,960 I need you to figure something out for me so I can take credit for it because I've got 40 00:04:19,960 --> 00:04:24,800 a client asking me for sketches and ideas and I'm drawing blanks here. I'm going to 41 00:04:24,800 --> 00:04:31,040 guess that it was probably the latter, but again, it wasn't that big of a deal. When 42 00:04:31,040 --> 00:04:38,800 it becomes a big deal, when somebody deliberately takes your idea and either claims it as their 43 00:04:38,800 --> 00:04:48,360 own or gives you no credit and both pathways end up to monetization for that party, then 44 00:04:48,360 --> 00:05:03,520 you have to start using bigger words like plagiarism. But first, where using a copyrighted 45 00:05:03,520 --> 00:05:10,120 design did come in useful was in my early years in my career, especially with my Goldsmithing 46 00:05:10,120 --> 00:05:18,560 apprenticeship, something like Cartier's Trinity Ring. While a three ring interlocking 47 00:05:18,560 --> 00:05:28,400 rolling design isn't necessarily their original concept, they did end up interpreting it originally. 48 00:05:28,400 --> 00:05:34,480 They picked three different shades of gold, yellow gold, rose gold, and white gold. They 49 00:05:34,480 --> 00:05:40,840 assigned different meanings to it so it became very personalized or had sentimentality and 50 00:05:40,840 --> 00:05:45,280 ran with it because of course they stamped their name on it and had the whole campaign 51 00:05:45,280 --> 00:05:53,680 to back it up. On the bench, I was instructed to make rolling rings. It was an exercise 52 00:05:53,680 --> 00:06:02,120 to not only train my hands, but also train my mind. Am I copyright infringing? Am I counter 53 00:06:02,120 --> 00:06:11,840 fitting? Am I claiming that this is a Cartier? No, none of the above. It's an exercise based 54 00:06:11,840 --> 00:06:20,240 on an iconic product and seeing how close I can get to the standard that we're all familiar 55 00:06:20,240 --> 00:06:28,320 with, not just visually, but in the demonstration and craftsmanship as well. It also helps to 56 00:06:28,320 --> 00:06:36,320 try and sketch branded pieces. Why? Because a client is going to come in and speak from 57 00:06:36,320 --> 00:06:42,600 certain levels of familiarity. Hey, I really like the way Tiffany's did this. I definitely 58 00:06:42,600 --> 00:06:50,400 want an element in my design that looks like the XYZ pattern from So-and-So's design 59 00:06:50,400 --> 00:06:58,080 house or brand. Those are normal conversations and to a degree pretty valid requests. So 60 00:06:58,080 --> 00:07:13,120 let's discuss what manufacturing has to say about when you're straight up copying. In 61 00:07:13,120 --> 00:07:22,320 manufacturing, there was a verbal policy handed down to us that I had to have 10% deviation 62 00:07:22,320 --> 00:07:29,320 from the original design. 10% isn't going to be enough on certain aesthetics that are 63 00:07:29,320 --> 00:07:38,720 branded. For example, I can't just make the Nike swoosh 10% smaller or wider. I can't 64 00:07:38,720 --> 00:07:47,040 change the colors of the Target bullseye and say, ah, see, 10% difference. I didn't copy. 65 00:07:47,040 --> 00:07:56,040 So it gets tough when it comes down to product versus graphic designer logo. The big brand 66 00:07:56,040 --> 00:08:04,640 that was most quote unquote emulated or homage in my days in manufacturing at that time was 67 00:08:04,640 --> 00:08:13,800 to Corey, which was known for a very European architectural vintage replica aesthetic. Before 68 00:08:13,800 --> 00:08:21,480 long, everybody in their brother was ripping them off for half of the price, which is usually 69 00:08:21,480 --> 00:08:27,400 one of the motivations to become a copycat. Obviously, you're not going to do things such 70 00:08:27,400 --> 00:08:35,880 as their quote unquote signature. For example, Roberto coin is a brand that puts a tiny ruby 71 00:08:35,880 --> 00:08:41,480 on the inside of its designs. So while we were staying away from certain elements like 72 00:08:41,480 --> 00:08:48,040 that, there were pieces that were made that were almost impossible to tell apart from 73 00:08:48,040 --> 00:08:54,960 to Corey's original design versus how we created it, mostly because somebody usually gave us 74 00:08:54,960 --> 00:09:03,760 a to Corey piece, or the design was so prevalent on the internet. And CAD designing was already 75 00:09:03,760 --> 00:09:10,840 a critical element of the manufacturing process, that it wasn't that challenging to reproduce 76 00:09:10,840 --> 00:09:19,600 something in its likeness. Did to Corey ever say, Hey, stop? No, not because we were too 77 00:09:19,600 --> 00:09:25,480 small, but probably because it never became known that either where I worked was doing 78 00:09:25,480 --> 00:09:36,120 this with frequency or volume or large profit. On the other hand, a smaller designer, Etienne 79 00:09:36,120 --> 00:09:43,080 Parais, who made a very signature style of setting a solitaire, I don't totally remember 80 00:09:43,080 --> 00:09:49,920 what he called it, but it was a floating bezel kind of halo up on two posts. It was very, 81 00:09:49,920 --> 00:09:56,240 very postmodern. It was very avant garde for solitaire. And when I had my first design 82 00:09:56,240 --> 00:10:03,960 job, a cease and desist letter showed up at our location from that designer. Somebody had 83 00:10:03,960 --> 00:10:09,600 said something and it traveled through the channels and got to that company. And the 84 00:10:09,600 --> 00:10:16,240 company must have done their homework. You are definitely creating our rings and not 85 00:10:16,240 --> 00:10:23,480 giving us credit, not giving us payment, not asking us for any sort of permission. We're 86 00:10:23,480 --> 00:10:30,320 coming for you. That letter said cease and desist or pay a fine of $10,000 per every 87 00:10:30,320 --> 00:10:43,080 item copied. That was some pretty good incentive to figure out a different way. 88 00:10:43,080 --> 00:10:49,440 So here you are up against plagiarism. And that means that somebody is selling something 89 00:10:49,440 --> 00:10:56,840 as their own. The legal pathway starts with a cease and desist. You're going to want 90 00:10:56,840 --> 00:11:05,920 to either have in a certified letter delivered and signed for that the people or company 91 00:11:05,920 --> 00:11:13,760 or artist or laborer is stopping what they're engaging in as far as infringing on your original 92 00:11:13,760 --> 00:11:22,440 ideas and products or proposing some type of licensing for your work. The next step would 93 00:11:22,440 --> 00:11:30,760 be if cease and desist doesn't work or some arrangement isn't made or agreed upon, then 94 00:11:30,760 --> 00:11:37,160 it would go to the collecting evidence phase. It is case by case. We have no idea how many 95 00:11:37,160 --> 00:11:44,000 pieces need to be made that are copies or how much profit is involved. Perhaps it becomes 96 00:11:44,000 --> 00:11:48,760 a big deal once it's over a certain amount because it falls into a different tier of 97 00:11:48,760 --> 00:11:54,920 offense. After that, there's going to be some form of legal action. If that's the route 98 00:11:54,920 --> 00:12:07,680 that seems to be the best solution for this. Things that will have to be discussed is was 99 00:12:07,680 --> 00:12:16,720 this appropriation? Was this imitation? Is it simply being done in the style of are you 100 00:12:16,720 --> 00:12:21,640 simply an inspiration source that they're using? Hopefully you've done enough of your 101 00:12:21,640 --> 00:12:28,680 pre-work so that if you're going to lawyer up, you have reason and readiness. Obviously, 102 00:12:28,680 --> 00:12:35,360 I'm not an attorney and the days of working for one are long behind me. But when I was 103 00:12:35,360 --> 00:12:41,880 put in a situation over creative material, I had come up with some songs for a children's 104 00:12:41,880 --> 00:12:47,680 charity and I brought the album concept. I brought the lyrics and I brought the style 105 00:12:47,680 --> 00:12:56,480 that we'd be adding music to. I asked somebody to write music for these lyrics. I said, there's 106 00:12:56,480 --> 00:13:04,440 no compensation. There is publication, a copy, and I will include and print whatever dedication 107 00:13:04,440 --> 00:13:10,200 you want on the inside. That was the deal I paid for all of the studio time, all of 108 00:13:10,200 --> 00:13:16,240 the recording, all of the mastering, all the post production, all the artwork and all of 109 00:13:16,240 --> 00:13:23,920 the press. This guy says, I'm going to run off and re-record them my way. I had a friend 110 00:13:23,920 --> 00:13:30,000 in the music industry, Dylan, if you're listening, I'll never stop thanking you who said file 111 00:13:30,000 --> 00:13:37,840 a US copyright on this. And so for a jewelry design, the most current quote I can get is 112 00:13:37,840 --> 00:13:45,480 $65 to $125 per idea for record of ownership. That's something to consider if you want 113 00:13:45,480 --> 00:13:58,040 to proactively protect your intellectual property. 114 00:13:58,040 --> 00:14:03,480 So when you hold copyright registration, the best part about that is it gives you the exclusive 115 00:14:03,480 --> 00:14:09,760 right to reproduce, distribute, and publicly display your own jewelry designs. So when 116 00:14:09,760 --> 00:14:16,160 you're the creator and you do something new, you are protected. However, that doesn't stop 117 00:14:16,160 --> 00:14:24,440 all of us, does it? So let's talk about the top 10 key copyright cases and the awarded 118 00:14:24,440 --> 00:14:33,440 amounts are not small. Swarovski versus David Ehrman. Swarovski sued David Ehrman for infringement 119 00:14:33,440 --> 00:14:43,080 of its oral and twirl design. The courts found in favor of Swarovski and awarded $11.2 million 120 00:14:43,080 --> 00:14:51,440 in damages. Cartier sued Costco because they were selling counterfeit versions of its love 121 00:14:51,440 --> 00:15:03,240 bracelet. The court found against Costco, Cartier received $25.2 million in damages. 122 00:15:03,240 --> 00:15:11,240 Another big branded house, Tiffany versus Costco. Again, Tiffany sued Costco for infringement 123 00:15:11,240 --> 00:15:17,160 of its Tiffany setting design, especially if one, you make it to look like Tiffany and 124 00:15:17,160 --> 00:15:23,560 two, you say Tiffany setting. Two bad ideas for the price of one. Tiffany walked away 125 00:15:23,560 --> 00:15:33,160 with $19.4 million. Oh look, it's Omega versus Costco. Omega sued Costco for selling counterfeit 126 00:15:33,160 --> 00:15:40,600 versions of its Seamaster watch. Omega took away $5.5 million. Maybe Costco is starting 127 00:15:40,600 --> 00:15:48,160 to see a pattern and learn a lesson. Louis Vuitton sued Duny and Burke for infringement 128 00:15:48,160 --> 00:15:56,240 of its checkerboard monogram pattern. Louis Vuitton received $3 million. Chanel, another 129 00:15:56,240 --> 00:16:04,520 design house in fashion, sued WMS for infringement of its iconic Camilla design. Chanel also 130 00:16:04,520 --> 00:16:13,280 received $5.5 million. Christian Dior sued Napoleon Paradis Cosmetics for infringement 131 00:16:13,280 --> 00:16:22,640 of its Miss Dior design. Christian Dior received $2 million. Bulgari sued Costa for infringement 132 00:16:22,640 --> 00:16:32,880 of using its Bulgari Hallmark. The cart awarded Bulgari $6.7 million in damages. Christian 133 00:16:32,880 --> 00:16:42,720 Laboutin sued Yves Saint Laurent for infringement of the Red Soul design. Christian Laboutin, 134 00:16:42,720 --> 00:16:55,720 $4.5 million. Lastly, Tiffany versus eBay. Now, if you've listened to my episode before 135 00:16:55,720 --> 00:17:01,800 in season one, I mentioned that the first time Tiffany went against eBay, it was not 136 00:17:01,800 --> 00:17:09,560 in favor of Tiffany. However, Tiffany did not give up and sued eBay for contributory 137 00:17:09,560 --> 00:17:20,680 infringement of its trademark. The court awarded Tiffany and company $61 million in damages. 138 00:17:20,680 --> 00:17:25,600 You can see that this is considered a serious crime and there are hefty fines with potential 139 00:17:25,600 --> 00:17:32,200 jail time if you're convicted. You have civil penalties, you have criminal penalties. Think 140 00:17:32,200 --> 00:17:46,800 twice before committing. That said, there is the honest mistake and I do believe that 141 00:17:46,800 --> 00:17:54,200 there is liminal mind that somewhere what I thought was an original idea was being mused 142 00:17:54,200 --> 00:18:04,800 upon half a world away in Japan by another artist. Or what I'm busy thinking of bringing 143 00:18:04,800 --> 00:18:15,320 to life and to fruition is being dreamed up down in South America when it's simply a 144 00:18:15,320 --> 00:18:22,720 great idea that is received by multiple artists and there's a level of unawareness to it. 145 00:18:22,720 --> 00:18:29,960 That's it can be resolved in the art of a truthful and excellent conversation. I'll 146 00:18:29,960 --> 00:18:37,120 be looking into any of those cases to see if things ended amicably as a win-win for 147 00:18:37,120 --> 00:18:43,560 both parties. 148 00:18:43,560 --> 00:18:47,400 Thank you for listening and learning with me. I would love you to share this project 149 00:18:47,400 --> 00:18:51,840 with people finding rare beauty in today's world and throughout our times. Until the 150 00:18:51,840 --> 00:18:54,200 next episode, keep your own stories sparkling.