Saturday, January 21, 2012

Copyright Rant Follow-Up: Copyright vs. Patent

So, it seems in the Crazy Copyright Cake War that was going on yesterday, there was some confusion between a copyright and a patent. I feel it is very important to clarify between the two, since this seems to be the source of the conflict.

As defined by the U.S. Patent Office:

"A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available.

"The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.

"There are three types of patents:

Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;

2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant."

To clarify the matter further, yes, you can patent a design. However, there is more information on what is and is not acceptable for a design patent:

"Improper Subject Matter for Design Patents
A design for an article of manufacture that is dictated primarily by the function of the article lacks ornamentality and is not proper statutory subject matter under 35 U.S.C. 171. Specifically, if at the time the design was created, there was no unique or distinctive shape or appearance to the article not dictated by the function that it performs, the design lacks ornamentality and is not proper subject matter. In addition, 35 U.S.C. 171 requires that a design to be patentable must be “original.” Clearly a design that simulates a well-known or naturally occurring object or person is not original as required by the statute. Furthermore, subject matter that could be considered offensive to any race, religion, sex, ethnic group, or nationality is not proper subject matter for a design patent application (35 U.S.C. 171 and 37 CFR § 1.3)."

Now, I'm no attorney, but I take that to mean that since finger cuffs like this have been around for centuries, you can't file a patent on them and prevent someone else from making them. (You can't patent a pendant that hangs from a chain, because they have been around for thousands of years.) In this case, you might be able to patent a particular hinge joint on the finger cuffs, if it was deemed new and useful, but not the finger cuff itself, since these types of cuffs have been around for hundreds to years.

Copyright, on the other hand, is a very different sort of animal. A copyright would cover, say, the instructions for creating such a finger cuff and prevent someone from using those directions and then claiming that they were their own. However, a copyright does not prevent someone from making as many of these objects as they please.

You can take a beading stitch like peyote stitch, write and illustrate your own directions, and copyright those so that you have the exclusive rights to that particular set of directions. However, you have not earned the exclusive right to use peyote stitch and forbid all others to do so, as would be the case with a patent.

Does that make sense to everyone?

So there it is. If this person who claims to be suing Mikki thinks that she has a patent on beaded rings that cover more than one part of the finger, she's most likely mistaken. Either someone was asleep at the patent office that day, or this person is confusing the difference between patent and copyright, which are two entirely different things.

The bottom line is this: copying someone's work is just bad for everyone. That said, I do believe that more than one person can come up with the same design. There are lots of talented beaders out there, and you know what they say about great minds and all that.

What bothers me the most about all of this is the zeal with which Mikki has been attacked. Does the person who threatened to sue her REALLY think that she is going to earn fame, fortune and a mansion in Palm  Beach by patenting beaded finger cuffs? (Which she couldn't do, anyway!) If she does, well, good luck to her. Otherwise, this just seems way too mean-spirited to be of any merit to anyone.

And I think that's what a lot of this comes down to. Sure, there are things that you can do with a copyrighted pattern or design, as Sig rightly pointed out on my last post. But, really, is that an ethical or moral thing to do? Just because it's legal doesn't mean that it's right. We're all people trying to earn a living doing something we love, and we should be making an extra effort not to step on toes and to be respectful to each other and our craft.

Now. That's all done, and Colden and I are off to a play date this morning!


Mikki said...

Thanks for clarifying that Jen. Years ago she told me, and anyone else who was on that forum, that she was filing a patent, had it ready to go with a patent attorney. When she contacted me yesterday the word "patent" was never mentioned and she accused me of copyright infringement. So either she didn't file for a patent or it was rejected.
I pulled my tutorial simply because if she thinks it's too similar I will be respectful of that....I don't believe I infringed her copyright as the shape, embellishment and the hinge were all different. At the time when I created my first finger armor it was from a design I had done based on gauntlets...I hadn't thought of doing it in bead weaving at the time of the design because I simply didn't know bead weaving existed.

There is a term in law "inevitable discovery" that I think would apply to my case here. Did I get the idea to make my design in beads from this gal.....yes. But as the fashion for full finger rings grew and they became commonplace...would I have thought of making them in beads...hell, yeah.

As I posed to someone today...what would our world be like if everyone who came up with a general idea patented it to prevent anyone from doing anything similar? If 'beaded wrist adornment' was patented? Or 'oil paint on canvas'? Or 'structure with padding used for sitting or reclining'? You could argue that it would be a form of censorship. Is that what we want?

Cynthia Newcomer Daniel said...

Personally, I try to make things as available as possible; of course, I can only do this as long as I can afford to do it. I need to be able to buy beads, and to be able to have the time to bead. If I don't make any money at it, then I can't buy beads, and I will have to work for someone else, which would severely limit the time I have for beading. So, realistically, I can't just give it away.

That said, I also have a strong desire to see the craft continue and grow - I love it when someone takes one of my ideas and runs with it, creating something I would never have thought to do. I love it even more when their ideas take me places I would never have gone without them.

It's sad. The person who is doing this is a very creative and accomplished beader; she's a generous teacher to many, but for some reason, she seems to think that no one else should be allowed to make this particular item. Even if she had invented it, I'd find that sad. There are so many possibilities for "full finger rings" (as Mikki mentioned in her blog, I attached a beaded "glove finger" to a handflower bracelet; in strictest terms, I guess it could be called a "full finger ring."

While I'm all in favor of people not copying others, I hate to see the give and take of the creative process quashed. Lace making went through a similar period of jealousy and insecurity, and many methods were lost entirely. I'd hate to see that happen to beading.

Tia Dalma said...

Jen, Mikki and Cynthia,

I had such a heartbreaking and stressful day yesterday because of this entire situation! I see this "incident" and situation in the same light as all of you have described here, in your blogs and on FB.

I see the three of you and everyone involved in this "incident" as extremely talented and original designers. None of whom fit the bill of "Design Thieves" or Copyright Infringers!

When I began beading, I studied everything Jen wrote on

I have been and am currently studying Bead Looming techniques in a FB group.

I have admired and followed the work of both Mikki and Cynthia and have bought (and plan to buy more) tutorials from you and several other designers and beadwork artists. All because you are original designers.

And because you foster an environment of furthering everyone's knowledge in the beading community and because of your desire to keep this artform alive and growing.

When this "incident" occurred, it tore a hole right through me...because I just cannot understand what could be inside someone who would want to restrict the creativity of every beader, artist and designer in the world by "Owning all rights to a ring that covers the finger in beads".

The mere fact that anyone would ever apply for this type of Patent or even think it was a good idea, just blows my mind.

I believe in sharing knowledge and enthusiasm about our artform, I believe in encouraging others to push their limits and to learn something new every day, and I believe in the ethical & respectful truths by which we should all be practicing our artform.

And I believe that every artist and designer deserves the credit and the income for their work!

Everyone may not live by these standards, but I believe that most of us do. And I can no longer care about the ones who do is too painful and too disappointing, not to mention entirely too distracting.

I believe from the bottom of my heart that no copyright has been infrigned upon and no design has been stolen here.

Anyone who believes differently needs to do a moral, and portfolio, inventory.

I thank you and respect you for being the artists and designers that you are and for sharing your knowledge and inspiring the rest of us!

And as my husband always says, "Fight the good Fight!"

Thank you,