I love nothing more than receiving reader “tips” in my inbox on hot, legal ish. The latest tip came from an artist wanting my take on a potential copyright infringement situation involving Urban Outfitters and Stevie Koerner, a Chicago-based, indie jewelry designer. This situation surfaced in 2011 but is nonetheless still a great teaching moment for jewelry designers. First things first…
Copyright law protects the work of jewelry designers when the look and feel of the design elements, combined, are original.
For example, in the case of Herbert Rosenthal Jewelry Corp v. Kalpakian, the plantiffs alleged copyright infringement of a jeweled brooch, in the shape of a bee. The court found that there were limited ways to make a jeweled brooch in the shape of the bee. Therefore, any later design of a “bee pin” would resemble plaintiff’s pin. In other words, the combination of elements in the design of this pin were not original enough to warrant copyright protection.
Now back to the issue at hand…
Koerner’s line (available at Etsy) is called “A World/United States of Love” while the Urban Outfitters line was named, “I Heart Destination.” Koerner’s stand-out element was that each state or country-centric necklace featured a prominent heart cut-out.
And, so did the necklaces sold by Urban Outfitters.
The question is whether the heart cut-out element is generic. Or could it be considered unique enough to warrant copyright protection? Is this actually a case of copyright infringement at all?
Although that question would be one for the court decide, Koerner’s strongest argument may have actually involved trademark infringement, and not copyright infringement. Urban Outfitters named their necklaces “I Heart {Insert State Name}”, exactly like Koerner’s necklace names. Copyright law can be a little murky for jewelry designers. But, Koerner would certainly be warranted federal trademark protection if the names of her line were registered trademarks with the USPTO.
Trademarks identify the source of a product or service and one of the factors to determine if trademark infringement exists is whether there is a “likelihood of confusion.” In this case, would the public be likely to confuse the Urban Outfitter’s line with Koerner’s, based upon hearing the name(s)?
Probably.
As creators, it is important to use the different intellectual property laws to protect your work. Just as it’s wise to diversify your investment portfolio, it is also wise to diversify your IP strategies. A intellectual property attorney can counsel you on the difference between copyright and trademark protections, and how to use the law to your greatest benefit.
As a side bar, the Urban Outfitters line is no longer available on their website…. *side eye*
What do you think of this issue? I say, kudos to Koerner for standing up for herself. This sort of issue happens way too often. It’s one of the reasons why I think it’s important to stand behind and support #indiebiz.