Legal Issue

[Robert Bonomi]

In article , SPAM)vasys"

[Robert Bonomi]

Patent is *not* applicable.

"yahbut" applies. The owner of the items pictured may _also_ have rights that have to be dealt with. "Smart" photographers get a 'models release' for anything that they _might_ later want to use commercially. :)

Depends on which meaning of 'take' you mean.

If you steal one of his prints, and reproduce it for sale, then yes.

If you produce an "original" photo yourself, then the answer gets a _lot_ more complicated.

If you 'got the idea' for taking your photo, _based_on_ his photo, and have copied the creative elements (e.g., composition, etc.) in his photo then *yes* it may well be infringing on the copyright on the original photo -- see "derivative work".

[WillR]

BZZT wrong answer.

See my other post. Read the damned copyright act.

I gave the links.

That would come under the criminal provisions -- assuming a profit motive.

[WillR]

Conspiracy, Intent - unless you _don't_ copy. Criminal provisions often treble any settlement. The fact that you _knew_ you were duplicating copyright or patented property can _treble_ the settlement.

This is one case where ignorance is safer. If you don't know that you duplicated patented or copyrighted work at best people can get "normal" damages. At least in the land of the free home of the brave - or whatever.

I hope you don't consult in this area.

Well prove it -- copy the piece of an irate artist. I did not make blanket statements by the way. A specific question was asked.

Don't get so excited. :-)

You're sidetracking here. Not the issue under discussion. Intent to copy was admitted.

Then there wasn't copying was there?

Correct on this much. Are you up to date? I get into this regularly, write contracts and would not dare claim your level of expertise.

I always suggest that people read the acts and make up their own mine.

*PLUS! I always caution that Copyright violation is in the eye of the original creator. *

Suggest you be more careful at claiming expertise unless your contracts stand up in court. Mine do -- and I still won't make the claims you do.

Err on the part of caution.

[WillR]

Yes -- it is closer... However I have done digging in the past and recent research shows that any suits in the US might be looked on more favourably if you register. Don't think any claim I made was stronger than that.

The USA looks after corporate America, I am not sure that US courts would resolve International disputes in an even handed fashion. So registration could be safer for foreigners -- even if not required.

As I have said repeatedly -- depends on the depth of the pockets of the parties -- right?

US law vs Berne. Is US law universal? Were you talking about the USA only or generally? :-)

I admitted I could be wrong on some issues.

Again -- I suggest that you not give advice. You're not cautious enough.

Seeing as I read the treaty before replying... then I would be more careful. Readers of the various treaties and the analyses of them are cautioned that the terms can be interpreted very broadly.

That is why I am so cautious about copying work. And in this case the guys were talking about a _specific_ design -- and expression -- and they were aware that it was being produced commercially.

As I said before -- they can do what they want. Waste of time -- easier to do a "similar" design -- with their own techniques -- problem solved. Unless they have deep pockets for the litigation-happy USofA.

[WillR]

When dealing with IP -- research "proves" you know better and opens the door to greater damages in the USofA. Better not to know sometimes.

[Joe Gorman]

That wouldn't happen to be the multi section table in the dining room at Boone Hall Plantation, would it? They acted like I was about to paint cherry when I started to take out the camera, and the group I was with was to impatient to wait while I laid under the table and made sketches. Joe

[Robert Bonomi]

I *have* 'read the damned copyright act'. U.S., U.K., Netherelands, Denmark, and Swiss versions.

"give away for free (or as a gift)" is *not* a protected use.

It is a violation of statute, even *without* a profit motive.

RIAA, MPAA, and others in the US have filed multiple lawsuits. and won.

[Herman Family]

The best idea is to look at a few pieces, find what you like and don't like, and make something similar with some novel features of your own, such as different moldings, wood, joinery, size, etc. Direct copies of a current or recent past item aren't such a great idea.

The other side of the issue is whether or not you get caught. There is no prosecution possible if no one complains and no one else knows about it. Copying a piece directly could get you into trouble if the right person found it in a timely manner. That person would probably have a serious axe to grind and a fantastic knowledge of furniture. Your chances of trouble increase with volume and similarity. Moral of this is to avoid the temptation to mail a picture of your creation to the guy who actually designed the piece.

After you are actually caught, the manufacturer would have to decide if prosecution was worthwhile. Launching a $50,000 case to recoup a couple hundred dollars in lost profit doesn't sound like a good idea. If this is some small piece which is the bread and butter of a little nearby shop, they might very well take it as an offense, especially if you started distributing it to their potential customers.

Then again, the thought of a custom made duplicate of an off the shelf item sounds a bit strange to begin with. You don't often see a recipe that is advertised to taste "Just like the canned stuff you get at the market."

Michael

[no(SPAM)vasys]

Furniture would be covered under a design patent. To be considered "art" a creation generally has no other function to serve as "art".

There have been many court cases involving furniture manufacturers where one claims the other copied their design. It gets rather tricky as to what design or portion of a design is already in the public domain due to prior public use under "35 U.S.C. Section 102(b) Conditions for patentability; novelty and loss of right to patent" of the patent laws. Federal court rulings indicate a piece of furniture would have to have a very unusual or novel feature for a patent infringement claim to be held up by the courts.

If I went to a furniture store and took a few measurements and perhaps even a picture I could produce something similar but I don't think it would be a copy.

[no(SPAM)vasys]

The key word is "furniture" which would be covered under a design patent.

Much unique and creative effort goes into designing an automobile but look how many you can't tell apart.

[Robert Bonomi]

Let me count the errors: 1) It is *IMPOSSIBLE* for one person to engage in "conspiracy",

2) There is no such crime as 'intent'. To take an extreme example, approaching a store with "intent" to rob it is *not* -- in and of itself -- illegal. If you do _commit_ the robbery, there was still nothing illegal in 'approaching' the store. "Intent" comes into play with regard to some types of torts and crimes, where the _action_ must be done with particular _intent_ in mind. "intent" without "action" is *not* a violation. 3) Unsuccessfully "attempting" a proscribed action may be regarded at law as similar (or equivalent) to succeeding at it. 4) Copyright statute has provisions that specifically _allow_ copying for various reasons. *IF* the 'approach' for one of _those_ reasons, there is not even any 'potential' criminal act involved. 5) post hoc, ergo propter hoc fallacy. arguing that that which happens first is a crime _because_ of what happens afterwards.

Note also, that you did acknowledge that just 'approaching' the store is not illegal in any way.

Completely disregarding the existence of those situations where you *are* legally permitted to duplicate patented or copyrighted work without the permission, knowledge, or consent of the rights holder.

The feeling is mutual. :)

Would you agree that simple 'generic' furniture -- be it a simple cutting board, a milk-crate, stackable boxes, etc. -- _lacks_ the "original, creative" element required for copyright protection?

Would you agree that if the furniture is *not* eligible for copyright protection -- whether due to 'lack of originality' or any other reason -- that copying it is not a breach of copyright laws?

Would you agree that _that_ conflicts with the statement that copying of _any_ piece of furniture *MUST* be a breach of copyright laws?

And, what would _that_ prove?

Copying a work of an artist who does not object, does not prove that it is never a breach to copy an artists work.

Copying a work of an artist who does object, does not prove that it is always a breach to copy any artist's work.

BTW, I _have_ had occasion to "reproduce" the work of an irate artist. Despite their impassioned objections. And there wasn't a d*mn thing they could do about it. I knew it, and *they* knew it. Said reproduction was clearly covered under one of the 'fair use' exemptions in statute. end of story.

You asserted the factual correctness of blanket claims made by others, e.g., that copying a piece of furniture *MUST* involve breach of copyright.

Don't spread misinformation.

Review the original. I'm not sidetracking anything.

Yes, the beginning of the original article postulated intent to copy, Then 'another answer' was referenced (by the OP) that made an assertation that was tangential to the query. Which involved _unintentional_ copying.

You then asserted that that tangential response was correct.

How is 'intent to copy' involved in the statement that: ".....if a carpenter copies a piece *UNINTENTIONALLY*, then he'd break a copy right law. " (emphasis added.) =================

Or were you simply not paying attention to what was written? And which you then asserted _was_ "Correct"?

*BINGO* Neither is there any copying, if a carpenter "unintentionally" produces a work that is happens to be an exact duplicate of something he has never seen.

Yet you "confirmed" that that _was_ illegal.

You're a lot more comfortable making 'absolute' statements about what "must" be a breach, and what "is" illegal, than I am. I know where the swamps, pitfalls, and uncertainties are. And they are many.

Review the record. I've been pointing out that 'things are not that simple'. I have a d*mn good understanding of where the questions lie, that influence the determinations. I would *not* try to predict the outcome on any but the most clear-cut set of detailed facts.

_That_ is very *BAD*ADVICE*(TM)

The acts are only a very *minor* part of the legal corpus that must be considered. Almost all the 'important stuff', regarding 'where' and 'how' the lines on copyright are drawn is in the 'case law' on point.

The acts give utterly _no_ assistance as to what, for example, constitutes 'creative' effort sufficient for copyright protection. It took _Feist_ to begin to clarify that issue, in the U.S..

If there is a 'real' issue surrounding a particular question of application, the only sensible thing to do is t consult a legal *professional* who works in that area full-time.

*THAT* is also totally wrong. Copyright violation is "in the eye of the court." It is, unfortunately terribly difficult to get _any_ "feel" or guidance from the courts for 'general case' situations. They go out of their way _not_ to be helpful on the matter -- usually stating, in almost these words, that 'this decision is relevant only to the facts of this case, and should not be relied on as precedent for any other set of facts."

I suggest you review what I have _actually_ claimed. It can be summed up as: 'No simple answers. Any actual determination depends on details of _that_ situation."

[Robert Bonomi]

In article , SPAM)vasys" patentability; novelty and loss of right to patent" of the patent laws.

Copyright. and design copyrights are an *entirely* different subject from 'patents'.

See 17 USC 1301 et. seq. for the appropriate section of U.S. law.

For _patent_, entirely correct. _Copyright_ is an entirely different kettle of fish.

[Robert Bonomi]

In article , SPAM)vasys"

[Unquestionably Confused]

on 6/3/2005 9:51 AM Robert Bonomi said the following:

PROBABLY correct Robert but "whatif" the work included copied included a specific, "revolutionary" and PATENTED fastening device which was copied as well?

Does that apply to inanimate objects and non-humans? My decorative mailbox sitting out on the public right of way? My dog "Spot?"

Yahbut now you're doing what I was doing, just throwing a little shit in the game That's why I suggested he take this back over to another pint or two or three

Speaking of which, it's 5:15PM, I'm still in the office and I think I hear a bottle of beer calling my name. Have a great weekend making sawdust all!

[CW]

Is the horse dead yet? Has it been beaten sufficiently?

[Robert Bonomi]

You think you're being facetious. You're not.

The answer to that question, frequently, is 'yes".

I kid you not when I say that professional photographers *do* get releases from property (real or personal) owners, for shots they intend to use commercially.

[Charlie Self]

In the U.S., you'd want to ask your question of an intellectual property lawyer. Copyright and trade mark law is complex and convoluted, as is most law, far beyond need. I cannot imagine wanting to copy WalMart or KMart or Costco furniture in the shop, but there's really no accounting for taste, so I guess it's possible. I'm not sure you could get the cheesy look using real wood even if you tried, though.

[Ray_Manor]

And just what piece of furture have you seen in a store that wasn't a copy of some earlier piece of furniture?

ray

[fboettcher]

Most of the furniture that I've made, if I didn't have a purchased plan, came from going into high end furniture stores and getting basic dimensions on a piece. What I made never exactly matched what was in the store. sales people look at you funny when you measure pieces.

If it is aga>A little debate between friends has led me to spill it among the