If Icreate a design from a copyright, can it be mass produced without my permission?

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If Icreate a design from a copyright, can it be mass produced without my permission?

A fellow army wife has created a website of selling bracelets and necklaces. While looking on her page, I didn’t see any of her ideas that I like so I emailed her asking if I could make something personal so I created an idea for a necklace from charms she had throughout the website. Now she had such a big hit on the design by showing it to everyone and it’s up for mass production on her website. Is there any way I can get compensated for her sales for that particular design or even ask her to not sell it? It lost its personal meaning now that I know everyone can own my personal design.

Asked on January 2, 2012 under Business Law, Texas

Answers:

Kenneth Avila / Kenneth Avila, Patent Attorney

Answered 9 years ago | Contributor

The 1976 US Copyright Act provides that copyright exists "in original works of authorship fixed in any tangible medium of expression"  Now that we have defined what is a copyright lets look at the facts of your case.

Original works of authorship:  To met this requirements you must (i) have engaged in some intellectual endeavor and not just copied the work from somewhere else and (ii) the work must be more than minimal.  From the facts it seems to me that you did engaged in some intellectual endeavor.  However it seems as if some of your intellectual endeavor was derived from the work done by the fellow army wife (FAW) because you stated that you used her charms.  If her charms were the creative work of FAW then both you and FAW have a joint claim on your necklace design.  If the charms were not copyrighted by FAW then you may be able to claim the entire necklace design.  Also from your facts I would conclude that your work was more than minimal.  Minimal work are things such as short phrases, slogans, etc.

Tangible Medium of Expression:  To met this requirement the work must be sufficiently "permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."  Here your work is tangible because FAW preceived it by creating it herself, reproduced it by selling it to others, and communicated it by advertising it on her website,

So, from the facts you presented, it seems to me that you have some right to the profits but not all rights because you used her charms in your design.  If you wish to sue FAW for those profits you will have to register your copyright with the US Copyright office.

I would advise you to consult with a copyright attorney.  Bring with you your design, FAW’s website address, emails between you both, and anything else pertinent to this issue.


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