I basically agree with MikeCalo’s comments. IP protection exists so that innovators can profit from their innovations for a set amount of time, while making those innovations public knowledge so others can continue to improve upon them. I think, however, he may be confusing the copyright of a design (which as I have said does not exist) and the copyright of drawings. The drawings are protected to the extent that they cannot be resold without the permission of the copyright holder. Nevertheless, I think any individual who has obtained the rights of their use (through the purchase of a magazine) can make as many copies as he wants for his personal use, as long as he doesn’t redistribute them to the public.
Most of this thread seems to have shifted to a conversation about what is original and what is a copy. Although we will never come up with detailed rules on the subject, allow me to suggest some guidance on how we use our terms in the future. If we build a piece of furniture that when compared by a casual observer to an “inspiration” work is best described as “the same except for [blank]” (e.g. building the Japanese Bench vs. building the same bench with straight back slats) we should refer to the design as “inspired by [blank].” If, on the other hand, the casual observer would describe the work and its inspiration as “two different pieces of the same type of furniture” (e.g. someone builds a Lutyens bench after being inspired by the Japanese Bench) we should refer to the new work as “an original design.” If a work is “inspired” then the craftsman should only charge for the time spent modifying the original design. If the work is “original” then the craftsman should feel free to charge the premium normally associated original artistic works. There will still be a gray area, and the comparisons will still be subjective, but it may be enough of a guide to put any ethical concerns at rest. What do you think?
Thank you davidjt for defending the substance of my post despite its stylistic flaws. However, I must come clean, backhand is correct on both points: I did mean courtesy not curtsy; and the correct Latin phrase is sui generic not sur generic. Both mistakes were typos (not malapropisms even though the effect was the same) and were not intended as any type of double entendre. I appreciate backhand’s accurate clarification of my remarks (although not the sarcasm).
Allow me to clarify some of my others comments, lest there be any further confusion. I wrote my post as a direct response to the original hypothetical question posted for this thread while prefacing my conclusions with general legal and ethical analysis. As a result, some of my pronoun usage may have been confusing. When I said “you” I meant the reader who emailed Asa Christiana. When I said “the bench” I meant the “Japanese Garden Bench” featured in FWW #198. When I said “the designer” I meant Russell Jensen. I think most people understood this.
There are two very separate questions here. One is whether it is legal to reproduce a furniture design; and two whether it is ethical.
There is a great deal of confusion about what is entitled to intellectual property (IP) protection (e.g. patent and copyright protection). In my opinion (I am a lawyer but not an IP specialist), the bench design is not entitled to U.S. IP protection. Without going into a long dissertation on the law, furniture (as a purely utilitarian article) is not generally entitled to copyright protection but individual artistic elements (like carvings) are, as long as they can be evaluated on their own merits (i.e. separate from the furniture). The artistic elements of the bench only make sense within the context of the furniture and are therefore not entitled to copyright protection. Many industries suffer from this oversight in the law including fashion designers and boat hull designers. As a result, the government has the ability to provide specific exceptions to the law in what is known as sur generis protection. Currently the US only provides this exception to boat hull designers. Alternatively, the designer may have been able to get a design patent (distinct from a utility patent) if he could prove that the design was “innovative” (which would be difficult in this case). Without one of those two protections, you can reproduce and sell the bench without fear of being successfully sued by the designer.
Having said that, the question remains if it is ethical to reproduce and sell a bench based on this design. Well if you are simply building the bench and your client knows it is not your design, then I don’t have a problem with it (asking permission of the designer is a professional curtsy that we should all aspire to when practical, but it is not unethical to fail to do so). I assume you are charging them strictly for the construction of the bench. If you charge your client for the design without making significant alterations to the design, you could open yourself to a claim of fraud.
Sorry for the length of the post.
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