For jewelry designers, a few key pieces may define their reputation, especially for precious metal designers, who may only make a few notable designs per year. For designers who are concerned about protecting their unique pieces, there are a few intellectual property avenues to consider exploring. The rules of intellectual property types are complex, and design specific, but this blog will hopefully help you learn the basics as a base for further research. As with all Law On The Runway posts, this blog isn’t legal advice; it is just some educational information. If you would like to get in touch with Law On The Runway, please email Rachel@lawontherunway.com.
Copyrights are intended to protect artistic works that are decorative, and not functional or useful. Because jewelry requires both functional components and decorative components, we have to separate the functional from the beautiful. For jewelry, we are looking for parts of the whole design that look like a painting, a sculpture, or a drawing. These parts can receive copyright protection, even if the entire design doesn’t qualify for a copyright.
For example, a necklace with a basic thin link chain, with a clasp and a pendant, would have decorative and functional components. The basic chain and the clasp are useful. They are meant to hold and secure the pendant. The pendant, however, should it look like a tiny sculpture be considered an ornamental work of art. If the pendant contains at least a small amount of original creative inspiration, the pendant design can receive copyright protection, but the chain and the clasp can be freely copied by others. Often, one way to identity a useful component from a decorative component is ask if the component would put the competition at a significant disadvantage should one designer had the exclusive rights to it. Any additional details, such as a jeweled pattern or a surface etching may also receive a copyright if it meets a threshold of creativity requirement.
Copyright Publishing Requirement
The Copyright Office does consider whether or not the work is “published” when offering the scope of copyright protection to a designer. This blog article won’t cover this topic very much, but should you do further research into gaining a copyright this information might be helpful. A jewelry design is published when it is sold or given away, or offered for sale. You can copyright 2D designs (such as sketches) prior to the sale, but for the 3D version, the publication is once it is in the hands or eyes of the public, with the intent to transfer it to someone else. An example of why publication matters is that you receive certain the ability to recoup attorney’s fees and earn statutory damages if you win a lawsuit against someone who has infringed on your Copyright. If you wait to register until three months after publication, should you later have a lawsuit, you will only receive the proven cost of the damages done to you and proven earnings of defendant, but no attorney’s fees or statutory damages.
You may not have to choose between a design patent and a copyright. The courts and the US Patent Office have noted that there is an area of overlap between copyright and design patent statutes, where a designer can secure both a copyright and a design patent (For those looking to dive further into this, check out (In re Yardley, 493 F.2d 1389, 181 USPQ 331.) Your ornamental design may be copyrighted as a work of art (such as a sculptural work) and may also become the subject matter of a design patent.
The basic difference between a design patent and a copyright is that the design patent can be used to protect the shape of jewelry, but not surface level design. A copyright can be used to protect both the shape (if it is sufficiently creative, like a sculptural work) and the surface level design (such as painted details or light etchings).
To get a better understanding of what a design patent covers, you may want to check out this previous blog post on apparel and handbag design patents.
Finally, trademarks may also protect some elements of your jewelry. If you are consistently using a design element on your jewelry to identify that the jewelry is coming from your brand or company, that design element may become a trademark symbol. For example, Juicy Couture frequently placed stylized J charms on their bracelets, or engraved crowns on pendants as both a design element and as a source identifier. Just as with copyrights, the same work (or a portion of the whole design) may be covered by both a trademark and a design patent (for more info, see In re Mogen David Wine Corp., 328 F.2d 925, 140 USPQ 575 (CCPA 1964)).
This blog is meant to help you understand some basics of protecting jewelry designs with patents, copyrights, and trademarks. It should not be used as legal advice. If you do have questions about the blog content, you may contact firstname.lastname@example.org