Can I Get a Witness?

BB Becker, Denver, engraves inspirational messages on sterling silver bracelets, charms, and pendants. So does San Francisco jewelry artist Jeanine Payer. Payer believed Becker’s pieces too closely resembled her designs, so she sued him for trade dress infringement. Last October, after hearing expert testimony from a jewelry historian, a New York City jury found Becker not guilty.

Typically, a graduate gemologist or a jewelry appraiser—not a historian—is called on for expert-witness testimony in jewelry disputes. That’s because they’ve usually sold or appraised the piece in question. But when a jewelry-design controversy escalates to litigation, a jewelry historian makes a better expert witness than a graduate gemologist or an appraiser. That’s the view of Joyce Jonas, a well-known jewelry historian, who was the expert witness in Becker’s successful defense.

Becker explains how he found Jonas: “Judy Cohen’s rare book business came up in one of my Internet searches,” he says. “I was doing research on the history of engraving on jewelry. I wanted someone with an academic background who was familiar with this specific subject as well as the historical development of jewelry styles.”

Cohen recommended Jonas. “With Joyce I got the added bonus of someone who also was up-to-date on current designers and new trends,” Becker says.

Jonas, who teaches appraisal studies at New York University and conducts the popular “Jewelry Camp” antique jewelry conference held every July, says gemological knowledge and the ability to write an appraisal are helpful but not crucial in a court case like this one. “Methodology is secondary to knowledge of jewelry,” she says. “Don’t fill my head with all that methodology stuff.”

Jonas describes another case in which the defendant was accused of copying the plaintiff. The complaint was a three-page document, written by a jewelry appraiser. Jonas wrote a 28-page report in rebuttal. Because she knows jewelry history, Jonas could demonstrate that the design was an old idea—even older than the plaintiff.

In most cases, says Jonas, the judge will try to settle a complaint before it goes to trial. Unfortunately for most defendants, an expert witness who knows little or nothing about jewelry history typically doesn’t know whether or not the design can be owned by the plaintiff. “And the judge certainly doesn’t know,” Jonas adds.

Jonas feels that most “expert witnesses” in jewelry copyright cases aren’t expert enough to support either side. “[One needs] to know how to look at a piece of jewelry in the context of design with regard to history,” she says.

“I came to the conclusion that it’s time to advise our community that gemologists don’t know anything about jewelry,” she says. “They know gemstones—it’s part of a piece of jewelry—but they are only gemologists, and not the king of the mountain.”

Jonas adds, “If I take a job and it involves gemstones, I call the people who know gemstones. I make phone calls if I need comparables. G.G.s should turn to others or learn.”

Becker’s case makes the point. “The plaintiff’s alleged trade dress didn’t involve gemstones,” he notes. “The claim was about engraving on silver jewelry.”

DUELING EXPERTS

Appraiser Bill Hoefer, from AppraiserUnderOath.com in Tampa, Fla., is wary of infringement cases. “I have had several requests by attorneys to be an expert witness in copyrighted design infringement cases,” he says. “I always tell them the same thing—that I will not do it. The reason is that this is a subject not within my expertise. Appraisers (as well as jewelers) often step outside of their expertise when it comes to being expert witnesses.”

Hoefer says he knows appraisers who do such testimony, but he advises them against it.

“In any case, a pre-existing design will pop the bubble of a current claim to a design,” Hoefer says. “Researching old magazines, catalogs, paintings, and photographs of antique origin, patent numbers, copyrights, etc., is the key.”

Cos Altobelli, CGA and owner of The Altobelli Jewelers in Toluca Lake, Calif., also believes in the value of research, but he doesn’t think one needs to be a jewelry historian to do it. “You don’t have to be an art or design expert to do forensic appraising,” says Altobelli, who has testified on behalf of Ayanna, Cartier, Grando, and Tiffany in similar cases. “You just have to know where to look.”

REPRO MADNESS

Design infringement cases aren’t the only jewelry disputes that wind up in court. As reproduction period pieces flood the market, some buyers are fooled into believing they’re originals, and eventually some of those buyers sue. But according to Jonas, most dealers don’t know whether items are genuine or reproduction, and most gemologists haven’t studied enough jewelry history to make the call, either. “Make sure your expert witness is just that,” she says. She has this advice for gemologists thinking about entering the expert-witness arena: “You’d better start learning about antique and estate jewelry.”

Jonas also says appraisal courses don’t go far enough. “Fifty percent is repro,” she says. “This is what the public is dealing with. And most people can’t identify it.”

She continues, “You need someone who knows jewelry history. They need to go to school or to take classes in what you need to know beyond the G.G. Jewelry is not simply the sum of its parts. They’re actually a piece of art with history.”

But Gail Brett Levine, G.G., executive director of the National Association of Jewelry Appraisers, turns Jonas’s argument back on her. “I guess one could say with equal amounts of bravado that anyone who is not a graduate gemologist should not be considered an expert witness,” Levine says. “It depends on the case that the expert-witness expertise is needed for. I would think that any person with strength in the jewelry industry could be an expert witness given they could research a design infringement case. At the NAJA conferences, we have spent quite a bit of time training members to become expert witness—using their gemologist/appraiser skills.”

Says Jonas: “All I am saying is that we need to treat the jewelry with the respect that it’s due.”