VaughnT Posted March 27, 2016 Share Posted March 27, 2016 Some time back, I posted a photo of one of my dragon fangs on an FB page and the guy that runs the page fell in love with it and had to have it. I'm really glad that it spoke to him, and the transaction went smoothly. He's a happy customer and I got a few ducats in the bank, so it seemed like a win/win situation. Now, though, he's posted a photo of a brass model that he made from my fang and sent me a message that he'd like to buy more that he could use as models to cast in brass and sell to folks. While I'm always glad to work with folks, I've not run into this situation before and am not sure what I can do on my end to protect my design. It seems to me that he's the owner of the fang and can do what he likes with it. On the other hand, it seems like he's using my intellectual property or something. Maybe I'm just being paranoid. The thing that caught my attention was when he said that the cast fang is a model of a steel fang that he commissioned "from someone". He didn't commission the work (purchased outright after it was finished), and he didn't give credit for where the original came from. If he goes on to sell a dozen of those brass copies, do I have any right to remuneration for the use of my design? Since his decision to cast and sell them is after our transaction has finished and I had no knowledge beforehand, am I just SOL? There is plenty of photographic evidence around the internet to show that the design originated with me, but.... Link to comment Share on other sites More sharing options...
Frosty Posted March 27, 2016 Share Posted March 27, 2016 I'm not any description of lawyer but I believe protecting copyrights and patents is up to you to fight in court. The current legal system can't or won't protect patents pirated products sell freely in the US. You have "plenty of evidence" to protect yourself if you call him on it on FB. I MIGHT be tempted if he didn't want to meet MY price and conditions for future pieces. I think that's wishful thinking though. I don't know what you CAN do legally but enforcing intellectual property rights is . . . $? Frosty The Lucky. Link to comment Share on other sites More sharing options...
Kozzy Posted March 27, 2016 Share Posted March 27, 2016 You're treading on patent law there---there are 2 types of patents, utility and design. Utility is what something does and design is what something looks like. It also sort of crosses to trademark law because you can theoretically have a 3 dimensional trademark. Even then, he can copy his heart out for personal (non-commercial) use. In any case, you have little protection without spending the money and even then, it's pretty mediocre unless you can afford lawyers to intimidate people who infringe. I'd personally be glad that the guy had the morals to even ask/tell you you about it. Your best bet is to find a way to work with him to keep both of you reasonably happy rather than risking that you'll be completely cut out of the deal. I don't know the piece at all...maybe an extra surcharge to include rights to cast copies for sale? Copies have to include your makers mark? You never know until you discuss it with him. Link to comment Share on other sites More sharing options...
JHCC Posted March 27, 2016 Share Posted March 27, 2016 The fact that he wants to make more gives you leverage. Say, "I'll be happy to, but we need to clear up something first." If he's willing to make a deal to give you a cut of any future carrying sales, great. If not, dust your hands and walk away. If you see any more brass copies for sale, have a lawyer send him a cease-and-desist letter. Link to comment Share on other sites More sharing options...
VaughnT Posted March 28, 2016 Author Share Posted March 28, 2016 I kind of figured that I wouldn't have a legal leg to stand on since I didn't file any kind of patent on it. I just made something that I liked, just like any other smith. Here's the original just before I boxed it up to send to him. I hated to see her leave, but.... I can't seem to upload the image he posted on FB, but you can see it here: 12143250_1293800263968164_7642871355560926533_n.jpg No real worries, I guess, unless he starts selling hundreds of them! I sincerely doubt that there will be enough money in it to fund my power hammer build, but it's nice to dream! Link to comment Share on other sites More sharing options...
JHCC Posted March 28, 2016 Share Posted March 28, 2016 4 minutes ago, VaughnT said: I kind of figured that I wouldn't have a legal leg to stand on since I didn't file any kind of patent on it. I just made something that I liked, just like any other smith. Here's the original just before I boxed it up to send to him. I hated to see her leave, but.... I can't seem to upload the image he posted on FB, but you can see it here: 12143250_1293800263968164_7642871355560926533_n.jpg No real worries, I guess, unless he starts selling hundreds of them! I sincerely doubt that there will be enough money in it to fund my power hammer build, but it's nice to dream! It's an original work of art; you own the copyright, and he has no right to make unauthorized copies. You still have copies of all his emails? I'm assuming that he didn't say anything about making copies? I have a friend who's am intellectual property lawyer in DC. I'll drop her a line and see if she has any suggestions. Link to comment Share on other sites More sharing options...
VaughnT Posted March 28, 2016 Author Share Posted March 28, 2016 1 minute ago, JHCC said: I have a friend who's am intellectual property lawyer in DC. I'll drop her a line and see if she has any suggestions. All of our correspondence was via PM's on FB so I'm sure they're still there. I'll definitely have to go through them again to see exactly what he said, but I'm sure it wasn't a commission since all of our initial talk was about adding a tang to it so he could fix it to a handle to make something scepter-like. Maybe some mention of casting-for-sale was there and I'm just not remembering it. I'd be curious to hear what your lawyer friend has to say on the matter, especially since there was never a contract written up by either of us. Link to comment Share on other sites More sharing options...
SpankySmith Posted March 28, 2016 Share Posted March 28, 2016 This just makes me angry to read! Link to comment Share on other sites More sharing options...
JHCC Posted March 28, 2016 Share Posted March 28, 2016 This is my friend's reply: "Your friend owns copyright in the little fang sculpture. To sell a copy of it to another person is not the same as selling that buyer the right to copy it. Think of it like any creative work. So your friend can fairly ask the dude who is now copying the fang and selling it to others to knock it off. The author of an original work has the exclusive right to copy, sell, distribute that work. "Just FYI, your friend should go to the trouble of filing to register copyright in the fang sculpture with the copyright office. I think it's 35 bucks and a person can do it himself quite easily. http://Copyright.gov. Filing to register is a prerequisite to filing suit, which I realize he doesn't want to do but you never know when something is going to go big at gamercon, right?" She adds: "Useful -- https://cyber.law.harvard.edu/property/library/copyprimer.html" Link to comment Share on other sites More sharing options...
turbo7 Posted March 28, 2016 Share Posted March 28, 2016 Way I see it if you dont put up an argument against what he is doing you are by knowledge and inaction at least ssying you are happy for him to continue. At least get a good commission out of him for your rights. Link to comment Share on other sites More sharing options...
JHCC Posted March 28, 2016 Share Posted March 28, 2016 Get screen shots of ALL electronic correspondence. Now. Link to comment Share on other sites More sharing options...
VaughnT Posted March 28, 2016 Author Share Posted March 28, 2016 Not sure how to do screen shots of those message boxes since they're so small. I did, however, copy and past them to a file on that Google Drive place so I don't have to worry about them disappearing. Looking through them, it's pretty clear that he didn't "commission" the piece. He did specifically ask for permission to try casting one in brass for himself, and was very clear that he wasn't trying to sell them. I agreed to casting a single one because he phrased it as a simple experiment to see if he could get all the fine details of the root portion. All told, I think I feel pretty good about where things stand right now. Going back over our correspondence was a good idea and I don't think he's been anything but honorable to date. I will, however, look into that copyrighting thing just to make sure the Fang's are protected since I seem to be the originator of something new to the world. Whodda thunk that'd ever happen?!? Link to comment Share on other sites More sharing options...
Kozzy Posted March 28, 2016 Share Posted March 28, 2016 I missed the copyright issue thinking that sculptures weren't included in that category. Yes, sculptural items are included http://copyright.gov/circs/circ40.pdf So yes, it seems you do own the rights to it and can control his commercial use of your sculptural design. Link to comment Share on other sites More sharing options...
Nobody Special Posted March 28, 2016 Share Posted March 28, 2016 This is usually pretty clear cut on something like sculpture, or art pieces like that cool looking fang. But...what about things like bottle openers, and hammer styles? I see a lot of "Hofi-style" hammers being sold on the internet. Some of em are clearly profitting using his name to promote knockoffs, and are clearly wrong. Others are looking at it as, well, it's a general shape of hammer. I dunno, I think I could make a "Brazeal style" rounding hammer and not feel I was stealing his creativity, IF I'm not using his name to sell hammers or trying to make an exact copy, but if I were to do one like those fancy Cergol Ironworks deal with the chiselwork, is that artistic infringement? What about if I change the patterns to my own design? How about all those forged copies of say the Game of Thrones slave necklace that are floating around out there for sale (even though Danerys's was resin cast)? Or I often have people come to me and go "look at this bottle opener I found on the interwebs, can you make it?" My usual response, ummm, yeah, but let me make a few changes to make it my own. Sometimes I wonder if I'm still too close. Some of this stuff is craft, some is art, some in between, and it can get blurry. Some of it is clearcut, and making an exact copy of someone's design and taking credit for it is clearly over the line. Link to comment Share on other sites More sharing options...
kubiack Posted March 28, 2016 Share Posted March 28, 2016 If there is a market for these cast in brass or bronze then maybe it is time for you to cast them and sell them yourself. I'm sure most people interested in buying such an item would prefer to buy it from the originating artists. I think you should make the other sizes start selling them yourself and thank him for finding you an new market. Link to comment Share on other sites More sharing options...
JHCC Posted March 28, 2016 Share Posted March 28, 2016 6 minutes ago, kubiack said: If there is a market for these cast in brass or bronze then maybe it is time for you to cast them and sell them yourself. I'm sure most people interested in buying such an item would prefer to buy it from the originating artists. I think you should make the other sizes start selling them yourself and thank him for finding you an new market. Now THAT is a darn good idea. Link to comment Share on other sites More sharing options...
VaughnT Posted March 28, 2016 Author Share Posted March 28, 2016 3 hours ago, Nobody Special said: This is usually pretty clear cut on something like sculpture, or art pieces like that cool looking fang. But...what about things like bottle openers, and hammer styles? I see a lot of "Hofi-style" hammers being sold on the internet. Some of em are clearly profitting using his name to promote knockoffs, and are clearly wrong. Others are looking at it as, well, it's a general shape of hammer. I dunno, I think I could make a "Brazeal style" rounding hammer and not feel I was stealing his creativity, IF I'm not using his name to sell hammers or trying to make an exact copy, but if I were to do one like those fancy Cergol Ironworks deal with the chiselwork, is that artistic infringement? What about if I change the patterns to my own design? How about all those forged copies of say the Game of Thrones slave necklace that are floating around out there for sale (even though Danerys's was resin cast)? Or I often have people come to me and go "look at this bottle opener I found on the interwebs, can you make it?" My usual response, ummm, yeah, but let me make a few changes to make it my own. Sometimes I wonder if I'm still too close. Some of this stuff is craft, some is art, some in between, and it can get blurry. Some of it is clearcut, and making an exact copy of someone's design and taking credit for it is clearly over the line. This is where I get confused on the issue. The Dragon's Fang is pretty unique and I spent quite a few hours searching the internet to find examples of them. I fully intended to borrow ideas wherever I could, or move in a different direction from whoever else was making them. Imagine my surprise when I couldn't find a single example of something similar!?! There are a ton of teeth made from resin or wood, but nothing in Steel. And I have been asked on several occasions to make one of those GoT slave necklaces. Where do you draw the line? Since Cergol is doing such nice work with decorated hammers, does that mean nobody else can use similar shaping and marking techniques without infringing on his "copyright"? Is it okay to do the chiseling or butchering, but not both? As for casting them myself, I don't see that happening. With the set-up costs, I'd have to sell a whole lot of brass teeth just to break even -- and just how many guys out there want an 8" dragon's tooth? Link to comment Share on other sites More sharing options...
kubiack Posted March 28, 2016 Share Posted March 28, 2016 The simplest solution may be to inform your customer that the fang is copyrighted and that he may not reproduce it without being licensed to do so. If he is already set up for casting it may be in both of your best interests for you to make them in other sizes and your customer pay you to reproduce them. Link to comment Share on other sites More sharing options...
notownkid Posted March 28, 2016 Share Posted March 28, 2016 Don't drag your feet or put off copyrighting it do it today. Notify your "customer" immediately. Best Defense is a better Offense! Link to comment Share on other sites More sharing options...
natenaaron Posted March 31, 2016 Share Posted March 31, 2016 On 3/28/2016 at 10:14 AM, VaughnT said: This is where I get confused on the issue. The Dragon's Fang is pretty unique and I spent quite a few hours searching the internet to find examples of them. I fully intended to borrow ideas wherever I could, or move in a different direction from whoever else was making them. Imagine my surprise when I couldn't find a single example of something similar!?! There are a ton of teeth made from resin or wood, but nothing in Steel. And I have been asked on several occasions to make one of those GoT slave necklaces. Where do you draw the line? Since Cergol is doing such nice work with decorated hammers, does that mean nobody else can use similar shaping and marking techniques without infringing on his "copyright"? Is it okay to do the chiseling or butchering, but not both? As for casting them myself, I don't see that happening. With the set-up costs, I'd have to sell a whole lot of brass teeth just to break even -- and just how many guys out there want an 8" dragon's tooth? I asked a lawyer friend of mine about the use of names. She said it depends. A hand made object can never be duplicated, something will always be different, that is what makes it handmade. Two items made by the same person will have differences. If two people make something of a similar style, and sell them as their own creations they are different because they are hand made and lets face it there is not a whole bunch you can do with a hammer head. Designs are going to overlap. That is kosher. It leaves the kosher realm when someone says their hammer is a _________ hammer. If someone says the hammer is a ___________ style hammer they are riding on the coat tails of the original creator but not really breaking the law. The originator can demand the copier stop using the name, and they can copyright the name, but "__________ style _______" is legal. IMO riding the coat tails of someone is clearly defining your work as amateurish, and as an artist lacking original thoughts. If I were a landscape photographer (which I am) and I went to Yosemite, shot some black and white photos and called them Ansel Adams style photos as I tried to sell them, I would be laughed out of the room. No one would take me seriously. As an art buyer (which I do when funds allow) the last thing I am going to buy is a _________ style anything. I am going to the original artist. I will never by a Hofi style hammer. I would buy a Hofi Hammer. Link to comment Share on other sites More sharing options...
JHCC Posted March 31, 2016 Share Posted March 31, 2016 1 minute ago, natenaaron said: I will never by a Hoffi style hammer. I would buy a Hoffi Hammer. Isn't a "Hoffi" hammer just a cheap copy of a Hofi hammer? Link to comment Share on other sites More sharing options...
natenaaron Posted March 31, 2016 Share Posted March 31, 2016 Spelling fixed the Hoffi hammer would be the cheap mild steel chinese version Link to comment Share on other sites More sharing options...
JHCC Posted March 31, 2016 Share Posted March 31, 2016 Just now, natenaaron said: the Hoffi hammer would be the cheap mild steel chinese version AKA the "Softi hammer". Link to comment Share on other sites More sharing options...
natenaaron Posted March 31, 2016 Share Posted March 31, 2016 Sounds like you need to go to the emergency room if it has done that for over 4 hours. Back on topic Here is an article about a current copyright violation issue. xxxxxxxxxxxxxxxxx name calling xxxxxxxxxxx Link to comment Share on other sites More sharing options...
Nobody Special Posted April 2, 2016 Share Posted April 2, 2016 And on the other side of things, wasn't it Apple that recently sued Android over stealing their original idea of "rectangular phones with rounded corners?" Link to comment Share on other sites More sharing options...
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