Monday, October 22, 2007

"A Little from Here...A Little from There!?"

When do pieces and parts make a new whole?

Here's to a great new week! I had a little foot surgery these past few days, so I am catching up.

This blog was suggested by the delightful Brenda Pinnick of Brenda Pinnick Designs. It is her work that is up above - so fun and fresh! Brenda is a gifted artist and has several licensees (that's people who license her artwork!). Her blog suggestion was one based on a question we all ask "How much can someone else use your designs until it becomes their own?" And this my friends is a LOADED subject!

Percentage Rule - THE MYTH!

This is for US Law only - there is NOT a percentage rule that I have ever been able to find. I have heard so many different things about the "Law of 7 Changes," "10%," "Fair Use," "Parody," etc. They are myths in my opinion when it comes to how much you can change of something to make it your own. I have a statement that I use when I speak about these subjects. It comes from my parents: "If it looks like a duck, quacks like a duck, and waddles like a duck - IT'S A DUCK!" Now, without getting too deep - parody and fair use may be reasons to use the work, but you still would have difficulty in claiming it as your own

I learned last year that some foreign countries do have percentages or number of change rules. You are encouraged to check those out. However, in the be safe...REMEMBER THE DUCK!

Kits - Parts or a Whole?
As a veteran of the craft industry (consumer that is!), kits are an integral part of the business. Whether it is Michael's or QVC, kits provide consumers a great opportunity to have everything at their fingertips to hopefully make a successful project! However, the question is: "Kit Designer's Components - Consumer's Assembly...Who Owns the Copyright?"

This is one of the "grey areas" of copyright law (and there are many). This is similar to a question that Collage Artists struggle with. The US Courts hold different opinions based on where you are in the country. There is no bright line answer. HOWEVER, remember our "DUCK?"

It is my opinion that the "DUCK" analogy applies here. A consumer may be using his or her own "creativity" to assemble the pieces of a kit. However, the components are the unique design of the Kit Creator. When one takes an original work and reworks the parts - it is usually referred to as a "Derivative Work."

Please read below to what the US Copyright Office states as a derivative work:

A “derivative work,” that is, a work that is based on (or derived from) one or
more already existing works, is copyrightable if it includes what the copyright
law calls an
“original work of authorship.” (emphasis added by author)

To be copyrightable, a derivative work must be different enough from the
original to be regarded as a “new work” or must contain a substantial amount
of new material. Making minor changes or additions of little substance to a
preexisting work will not qualify the work as a new version for copyright purposes.
The new material must be original and copyrightable in itself. Titles,
short phrases, and format, for example, are not copyrightable.

I do not have a definitive "blanket" answer on whether or not a new work created from a kit rises to the level of an "original work of authorship." However, most works from kits are simple format changes of the existing pieces of the kit. The kit itself is generally a copyrightable work. Therefore, works based on that kit usually do not have significant changes to make the work "new."

Once again - back to our DUCK - if someone were to look at the card, picture, jewelry, etc...based on the kit - Whose work would the viewer see? Would the viewer see the Consumer's work (not counting the physical labor it took to put the design together) or the Kit Designer's work?

Here's a perfect example, if I were to purchase one of Brenda's Kits from QVC (and let's pick on Brenda since she suggested this topic) and used her paper, embellishments, and the like from the kit using only my own glue and say a few pictures of my dog...who owns the copyright then? Let's look at our analysis:

1) How much creativity did I use - did I use all her papers, create standard objects? Did I create a new card scultpure that would set the papercrafting world on fire? What did I create with the kit components?

2) When someone skilled in our art (aka another artist familiar with our industry) sees my cards, etc. - What do they see? Do they see only my creation or do they see I used Brenda's paper, embellishments and the like?

The above questions are those that one should ask along with a few others. It is my opinion that my hypothetical projects based on Brenda's kit, using the majority of Brenda's kit components would not rise to the level of an "original work of authorship." Remember, in the copyright world it is a GOOD thing to be called original - it is not someone just trying to be "nice" or tell you that your work "stinks!"

Collage Artists usually end up using lots of pieces and parts from lots of artists or works. That mixture usually allows a Collage Artist to rise to the level of an "original work of authorship." HOWEVER, it is a case by case basis.

The real question - "Do you feel lucky? Do ya?"

This blog reaffirms the fact that most of these situations are truly fact specific and individual in nature. It is why a continuing relationship with legal counsel is so important. One misstep could cost you dearly.

Please remember, this is not an easy subject and this is my opinion. I have actually had to argue both sides in court...The key is looking at all the facts. However, in the long run, remember the DUCK. Also remember, it is a jury that you would have to convince if the facts really were to come to it. The important goal is to keep you away from that situation. Don't forget the Golden Rule of Copyrights: "When In Doubt...Leave It Out!"

Have a great week! I hope to have the next blog on collections. I believe there are services that allow you to receive a notice when I post a new blog...or you can just come back and visit often!

Create with Your Heart and Your Head!



Robin Beam said...

Miss Tammy: Take care of your foot and thanks for taking such good care of us!


Brenda Pinnick said...
This comment has been removed by the author.
Brenda Pinnick said...

Thanks for addressing this loaded question! I DO want consumers to have lots of fun creating with my kits, but I want protection from anyone claiming authorship of my art!

Tammy L. Browning-Smith, J.D., LL.M said...

Robin - THANK YOU for always taking good care of me...this is the least I can do! And I just hobble around!

Tammy L. Browning-Smith, J.D., LL.M said...

Brenda -

Your kits are awesome! Thank you for letting me pick on you. Thank you also for your comments and suggestions...there is no better way to know how I'm doing unless someone "yells!"

Margot Potter said...


I hope you're feeling better!

This is a great topic and one that is particularly slippery for jewelry designers. People outright steal my work constantly and sell it as classes in their stores, kits on the web and as original projects in magazines. Often they don't change anything at all, which really chaps my hide. Or they'll use my original technique, but just change the beads or the colors slightly.

At the very least, I'd like some credit given where credit is due. It is not okay to take someone's work and sell it as a class or a kit without credit or compensation.

The trickiest part is we as designers often sell the rights to our work to magazines or manufacturers. If they aren't willing to go after the copycats...we're kinda screwed. I had one magazine send a copycat to me on the phone so I could "work things out" with them. I was fit to be tied. That person was a liar and a theif and I was being pressured to kowtow because they were an advertiser.

I don't kowtow well.

These are exactly the sort of things I'd love to talk with you about when you're feeling better.

This is an invaluable blog that is a must read for every designer in the industry.

You may quote me on that.


Terri Conrad said...

Hello Tammy, LOVE your blog, what a wonderful resource. I'm going to link to it from my own if you're ok with that.

On the topic of "kits" and copyright ownership, my thoughts immediately go to the many, many individuals who are purchasing our licensed/copywritten/tradmarked work product, and "re-packaging" it, comingled, and enmeshed with various other product. It's an industry whose boundaries are quickly becoming blurred.

As a newbie licensor to the papercrafting industry I am a bit ruffled with the fact that so many take this work product, re-work it, re-package it, place their own label on it, and actually sell to retailers & thru etsy & ebay, under their name with no credit given to the artist! This is where I draw the line, if I become aware of it. Ultimately, I suppose it all comes down to integrity & kharma and while we cannot police all, we must trust that what goes around comes around.

I'm just glad I'm in your hands!



Tammy L. Browning-Smith, J.D., LL.M said...

Margot -

You give fiesty a whole new meaning and give me an idea for a blog. I promised to do collections next, but mind is churning. The foot is doing better and call anytime! Thanks for reading!

Tammy L. Browning-Smith, J.D., LL.M said...

Terri -

I'm a firm believer in what goes around comes around...but that doesn't help when you're the one getting knocked off!

Thanks for allowing me to be part of your team!

Chrys0909 said...

I'm a late-comer to this blog, but this issue is still an important one that continues to be particularly messy for jewelry makers. Often, I see various sellers on presenting work that is almost identical except for bead color or number of wire wraps and all sellers present them as original works they "designed." I can't imagine how frustrating it would be to be ripped off by someone who was then selling it as their "original design" for ridiculously expensive prices. When does "similar" become "too similar?" Can you just copy some design from a magazine and, because you bought the supplies on your own, call yourself a "jewelry creator?" How does this work?

The Fine Print!

Since there may be legal discussions going on...there must be a disclaimer!

This blog is for educational and information purposes only. It does not constitute the practice of law. The attorney who writes this blog is only licensed in the State of Ohio and Michigan. There is NO attorney-client relationship of any type. You must sign appropriate documenation and have appropriate new client counseling to be a client of Browning-Smith, P.C. Each and every situation is different and all readers must seek his or her own legal counsel. The information on this blog is not guaranteed for any purposes nor is it to be relied on.