[Woodcarver] copyright rules etc.

[Joe Dillett]

Prior to 1978 a copyright was not so easily implied, so it was necessary to register your copyright to insure protection. Prior to 1978 I was selling a series of colonial plaques, every year adding one or two more to the series. I knew that there was a religious group (not mentioning the name) that would purchase my new designs to reproduce them. After several years they showed me that they had the copyright on my designs and ordered me to stop making them. I was able to quickly show them that my copyright predated there's and that they were infringing on my copyright. They quickly stopped reproducing my designs. If I had not registered or had proof of date of origin they could have forced me to stop making my own design.

Byron makes a good point about documenting when you created your design. One method suggested by my attorney is to print a letter with pictures of your design and have it notarized. Keeping copies of these letters handy can quickly settle any issue without getting into a legal battle.

Marcia, thanks for including the facts. One point not covered is that I believe the heirs can renew the copyright indefinitely. So one can never assume that the copyright has run out like a patent runs out.

Joe Dillett
The Carving Shop
645 E. LaSalle St. Suite 3
Somonauk, IL. 60552

(815) 498-9290 phone
(815) 498-9249 fax
http://www.thecarvingshop.net [business web site]
http://www.carvingmagazine.com ['Ask Joe' column]
http://community.webshots.com/user/joe_dillett
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  ----- Original Message ----- 
  From: Marcia Berkall 





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  1. A concept or idea is not copyrightable.  "Copyright protects 'original works of authorship' that are fixed in a tangible form of expression. " (Ref: http://www.copyright.gov/circs/circ1.html#wci )   

  2. "A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death.  "  (Ref: http://www.copyright.gov/circs/circ1.html#hlc )

  3 For items created prior to January 1, 1978, copyrights, through a series of legislations, were extended to last for a total of 95 years. 

  SO......the concept of Santa is not copyrightable...specific designs of Santa are.  I have never seen a Santa playing an African drum, or a violin, riding on a goose, carrying an elephant or dried flowers in a basket,  or tangled in lights.  They were not taken or in any way based on anyone else's designs..the Santas I carve are my own designs, totally.  There is a difference between using the "idea" or "concept" of Santa and copying a specific Santa design.  According to copyright law, then, I cannot stop anyone from carving a Santa playing an African Drum....that is just an idea.  However, I can take issue with someone copying my design for a Santa playing an African Drum.
  If you really want to push the matter, you could say that every Santa that anyone carves, draws or in any way depicts, wearing a fur-trimmed red suit is based on the Thomas Nast rendition which has become a commonly accepted "concept" of Santa. However, since Thomas Nast died around 1902, then any copyrights attached to his renditions of Santa have expired.  

  The issue with copyright is a financial one, basically. The problem is with making financial gain from someone else's design...or selling it or derivatives of it.  I spend many hours, often months or even years pondering a design, sketching it, resketching it and working up final patterns.  Is it fair for someone else to use that design for their own benefit?  That is what copyright law is intended to protect.

  Marcia (aka Mush)


      At 12:05 AM 6/20/2008, Byron wrote:


        All laws are subject to interpretation by the courts.  That's the way our constitution is written.   So no matter how any individual interprets the statutes the courts have the final say.  We pay lawyers to search court records to attempt to determine how an individual case is likely to be interpreted.   In every case some lawyers are right and some are wrong.  
         
        Now what do you do about it?  How do you deal with possible copyright infringement, that's up to each individual to decide.   As for me, I do my own design with computer copies of the my sketches so I have some proof that I created the design.  I also avoid something looking like well known icons.   From that point on I take my chances.   I think that's what most of us do.  
         
        I wouldn't take a pattern from any publication or rough out, carve it and attempt to sell that carving for several reasons.  The biggest one is that somebody else is already doing that.  
         
        As far as your works go, you didn't invent the characteristics that make your carvings a Santa.  Therefore those characteristics were copied from someplace, originally from somebody that had either a registered copyright or an implied copyright.   That's why I say from looking at carvings at shows, in publications, and the internet almost all are copied from someplace.   
         
         
         
        Byron Kinnaman 
        abkinnaman at earthlink.net 
        http://byronscabin.kinnamans.net/ 


  See Marcia's wood carvings at:                                                                                            
  http://whittlinsnwood.com
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