Seeking Copyright Protection for Designs

“Protect your designs now, because it can be so hard to pick up the pieces later.”
That was the message that Peter L. Berger, veteran patent attorney and copyright expert who works with the jewelry industry, delivered in his Wednesday seminar on copyright protection.

Applying for copyright projection of a design is simple. The application form isn’t difficult, and the fee for submission is only $45—$35 if done online. “This isn’t rocket science,” Berger said. “Anyone can do it.”

However, there are some caveats, he stressed.

A photo of the piece must be attached to the application, since an examiner views that, not the actual piece, in deciding whether to issue the copyright. “It must be a good photo—clear and sharp,” Berger warned. “If it isn’t, the examiner won’t even consider your application.”

Some generic geometric shapes in common usage won’t be considered, such as a simple square, heart, or circle. “A lot of jewelry designs can’t be protected by copyright, because they’re geometric,” said Berger. “To be copyrightable, the pieces need to be significantly different from simple standard shapes. Designs with more swirls and twirls are more likely to be get copyright protection than a simple, geometric design.”

It is possible to get other coverage for clean, geometric jewelry designs, “if it’s the first time they’re used that way,” said Berger. That protection is a design patent, not a copyright, and patents are expensive—$ 3,000 to $4,000 per design.

“When you make your designs, sign and date them at the bottom, or do that for your business document when you send out to have molds made,” Berger advised. “Or, take a digital photo of a model, date it and attach it to the document when you get it back from the model maker. You have to have some business records for these pieces.”
As long as the same design is involved, it isn’t necessary to seek copyright projection on every size, color, or gemstone variation, said Berger.

The copyright office allows large numbers of models to be copyrighted at one time, if they are part of a collection and haven’t been put on sale yet (called “unpublished” in copyright parlance).

“Some designers and jewelers file for copyright protection only when their designs are knocked off,” said Berger. But the copyright office encourages early application, and awards a defendant legal fees and special damages from the offending plaintiff in copyright violation cases. But if the application is made late, after the violation, “the defendant gets none of that.”

The copyright office, said Berger, “approves almost every application, as long as a good photograph is attached, the claimant is the ‘author’ of the design and there is no fraud involved.”