HOW TO BEAD A ROGUE
…A Guide For The Aspiring Bead Artist
by Warren S. Feld
Excerpts From This Ever-Evolving Tale.....
I don’t mean
to drag a poor Elephant by its tail, kicking and screaming, into our bead world
against its wishes. Nor do I perceive the elephant to be a threat, like you
might see an Elephant in the boudoir, or the fine china store. And I don’t
want you to shut your eyes and pretend not to notice that this Elephant is here,
standing shoulder to shoulder with every beader and jewelry maker around.
The Elephant is not a joke. And the fact that it is “Rogue” makes it more important than ever to figure out why it’s here, among size #10 English beading needles, and Czech size 11/0 seed beads, and Austrian crystal beads. It seems so worldly, yet other-worldly, our Elephant. It’s not our muse. It’s not our Cassandra. It has no secret plan or strategy. It does not depend on its size to make its point. It does not hesitate to stomp and chomp and clomp because the beads before it are raku or glass or gemstone or crystal or metal or plastic. But a Rogue Elephant in the middle of our craft room forces upon us a completely different logic, so that we can make sense of it all.|
CURRENT ROGUE ELEPHANT BLOG ARTICLES
Copyrighting My Pieces
People think that they can copyright their designs, and this single act will be sufficient to prevent people from copying their work. However, to prove that someone has violated the copyright, and to sue them in court, is difficult, time-consuming and expensive to do.
A copyright is a grant from the United States Government for a specific jewelry design. It can cover the actual piece and the drawings for the piece, but cannot cover a specific idea or concept. You can only copyright something that is tangible.
Your registration covers the specific design, and may be flexible to cover a color change. However, if there is any obvious change in the piece – different shapes, different patterns, different sense of dimensionality --, you would want to register each variation on a core design.
You can also copyright a “collection of jewelry”, but you can’t add new designs to the collection, without getting new copyrights. In the collection, the pieces would need to share design elements and sensibilities, and these would need to be obvious.
Copyrights last for the life of the designer plus 70 years. Use form VA (Visual Arts). It usually takes about a year for the paperwork to go through, but your piece is considered copyrighted from the date you submitted your application.
The US Copyright Office will often reject jewelry designs for lacking authorship because they consist of common or usual shapes and forms. When submitting your application, you should present a well-reasoned argument, based on basic principles of jewelry design composition, form and function, as to why your jewelry and patterns should be copyrighted.
To bring a lawsuit, you must formally register your copyright with the US Library of Congress.
Federal law specifies the amount of damages you can sue for. In 2006, if your copyright registration was filed at least 3 months before the infringement, damages could range from $750 to $30,000 per infringement up to $150,000 maximum without having to prove that you had lost any profit. If your registration was last minute, you can only sue for your lost profit, and/or your infringer’s profits.
When is a copy an infringement? The standard is that the piece must be substantially similar and that the infringer copied the piece. There is a general idea that if the piece is 10% different, it is not an infringement. However, this is not a legal principle or standard. It’s “infringement” whether the person copied your design directly, or copied it from a photo or other image that someone had taken of your piece.
If you want to pursue any legal action, consult a copyright lawyer. A lawsuit can easily set you back $2,000-4,000.
The Mess over Copyright
When an elephant makes a mess, it’s a big plop. You take a shovel, scoop several times to dump it into a plastic bag, then have it carted away. But the mess over copyright is much bigger, and less easy to take care of.
It’s true. Many people copy other people’s jewelry. A large number of these folks want to copy other people’s jewelry exactly, bead by bead, clasp by clasp, part by part. They come into the store with pages torn from fashion or bead magazines, and want to make the same thing. They try to take photographs or make sketches of finished art-jewelry in our Open Window Gallery. They try to duplicate what they see others wearing – particularly the news ladies on the various programs on TV.
Over the years, beader after beader, and jewelry-maker after jewelry-maker, stood before us, plain scared that, if anyone saw their pieces, their designs would be stolen. After all, they saw it happening daily all around them. For too many of these artists, this was an insurmountable mountain. One of our friends would bring her pieces for us to see, but if another customer walked up to the counter, our friend would cover her pieces with her hands – shielding them from the potential design-thief. Over the 15 years we knew her, our friend was determined to launch herself into the jewelry design business – a business based on not allowing anyone to see her merchandise, for fear they would steal her designs. I’m sure she’ll be at this business enterprise of her for 15 more years, as well. And not getting any further ahead.
If you want to sell your stuff, you have to put it out there. People will try to duplicate your pieces. So what? Successful businesses are successful, not just because they have great jewelry to sell, but because they’ve marketed well, placed their products well, priced their products fairly, distributed their products in a timely manner, and kept a tight control over the financial management of their businesses. They work, market, and invest in themselves so that eventually they create a “brand” recognition for their jewelry.
James once took a lampworking class where the instructor was teaching one of her signature beads. However, in her instructions, she left out three pieces of critical information, which prevented her students from duplicating her work. The water of the aquarium did not glisten blue. The dimensional arrangement of fish and plants could not be achieved. The students were very upset, because their pieces were inferior, by comparison, to those of the teacher. The students blamed themselves. But this teacher had been very dishonest and deceitful with them. She hadn’t really taught them how to make the bead they came to this class to learn to make.
If you want to teach classes or publish your work in a magazine or book, you have to put your instructions out there, (as well as present them so that anyone following them can come up with a result that is similar to the original as pictured). People will follow your instructions. They may teach your instructions. They may try to publish your instructions as their own in another book. So what? Successful instructors are successful, not just because they have great patterns to sell, but because they’ve marketed them well, placed them to maximize their visibility, priced them fairly, and created a steadfast brand loyalty on the part of their students and readers, who begin to associate particular looks, styles, steps and designs with particular designers.
If you don’t want the public to “consume your intellectual property,” don’t teach and don’t publish. I always felt that if you teach or publish instructions for the consumable public, then it’s like making a contract with them that they can follow and use those instructions. It’s no longer exclusively yours. As a teacher, it should be a natural part of the lesson to show your students how they might vary the instructions and make the piece their own. And ethically, it would be appropriate for any student or jewelry designer to reference the source of their ideas, if not their own, or not primarily their own.
This issue percolates to the surface every couple of years. Most notably was the shot heard around the world, when the editor, Mindy Brookes, at Bead & Button magazine wrote an editorial (June 2006 issue) about “When, if ever, is it acceptable to sell or teach another person’s designs?
From the editorial:
That’s a question we hear frequently at Bead & Button, and it tells us that many of our readers care about the ethical and legal issues involved when it comes to the money-making aspects of beading. Unfortunately, we also have first hand experience with beading’s darker side – the dishonest few who cause heartache and finanaicl harm by cashing, in on another person’s original work. And when unethical people profit from ideas that don’t belong to them, it hurts us all.
Maybe it was inevitable that as beading became more popular, people would look for shortcuts to exploit the growing number of lucrative opportunities, and maybe there is nothing one editor one editorial can do to change that. So, it’s gratifying to know that my concerns about the ethics of beading are shared by the editors of other beading magazines, including Cathy Jakicic of BeadStyle, Marlene Blessing of Beadwork, Pamela Hawkins of BeadUnique, and Leslie Rogalski of Step by Step Beads. They will also be covering this topic in upcoming issues of their publications.
To address the question presented at the start of this editorial, Bead & Button’s position on copying designs is as follows:
1. It is unethical to copy an artist’s work to sell without the artist’s
2. It is unethical to copy any work that has appeared in a magazine, book, or website and represent it in any venue as an original design.
3. It is unethical to teach a beading project that has appeared in a magazine, book, or website without the artist’s permission.
4. It is unethical to teach a beading project learned in another teacher’s class without the teacher’s permission.
If you agree, please help disseminate this message by including a copy of these statements with your class materials, your kits, and the pieces you sell. You can download a copyright-free version at beadandbutton.com.
The reactions of our customers, teachers and students in the store were strong, worried, concerned, angry, frustrated, soul-searching, and very questioning of the Bead & Button manifesto. The primary concern was that most people liked to try out the patterns in the magazine. Was this unethical? Many teachers took cues from the magazines about fun projects to teach. Was this now unethical?
How much, in percent, of a project would have to have been copied, to suggest that this copying was unethical?
If determining the correct percentage, what did you count? Color? Bead? Style? Stringing material? Pattern?
How many original designs can people truly come up with? What if the originators were some tribal or provincial group hundreds of years ago? With 54,000,000 people who bead or design jewelry in the United States, how many original ideas can there actually be?
What if someone created an important variation on someone else’s design? Who’s project would the project be, and would that variation have to be suppressed?
Should there be a distinction between “copying” and “learning new techniques”?
How could anyone find out what was already copyrighted in jewelry? Copyrights are filed by title, not design elements. There is no searchable database. There are so many books and magazines and so many hundreds of years of beading.
I had read of a court battle in Washington State of a glass artist suing two of his apprentices, who went off and started their own business. The original artist claimed that he had sole rights to create certain curvatures in glass. Can you really copyright or patent a curvature in glass – how many curvatures can there be, before the glass breaks? The original artist claimed that the work of the two apprentices was too similar to his own. To complicate the situation, the original artist had been physically unable to make his own pieces. He designed them, oversaw the work of the apprentices, and signed the pieces. If the original artist were to win in court, would this force all other glass artists out of business, because they would no longer have the rights to make certain curvatures in glass?
By trying to clarify the issue, I think Bead & Button muddied the water more. They confused the moral value of copying someone else’s work, with the legal value of copyrighted material.
What I say:
1. Don’t be a jewelry designer, teacher or craft-writer, if you don’t want people to copy your work.
2. Don’t copy someone else’s work and sell it or teach it, without at least referencing or acknowledging your source material.
3. When teaching or designing based on someone else’s work, set a goal for yourself to try to “make it your own”, by personalizing or varying the piece.