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Postby Tuppence » Sat Jul 14, 2007 10:09 pm

nige once had school kids chanting 'you kill god's creatures' at him. all he did was mention that rabbit stew was made from er, rabbit.

when that class got to me they just tried to swing from the bars in the pavilion...


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Postby Kate Tiler » Mon Jul 16, 2007 8:58 am

Well thanks for raking this up from the depths & adding to the crap feeling I already have today after driving back from working in Somerset with the worse cold I've ever had!

My gripe is - What I make are 'mini-tile' necklaces - miniature versions of encaustic tiles - created entirely by me, engraved individually, painted with slip, allowed to set for a day then carved back, edges made safe, fired once, then all glazed & fired again, then a necklace finding (costing 40p) glued on the back, then a waxed cord threaded and double knotted on.

These are unique - they are not historical copies, because they don't exist in real life. I created them because after children have been working with me to make a tile they want a souvenir and either don't want or can't afford a big tile. I don't sell that many because no, they aren't cheap. But they are unique individual pieces of real encaustic tile and bought as much by adults as by children. Almost all of the patterns I carve are historically sourced or relate to the tiles I make and I can identify these if people want me to, but they are a complete fabrication, made by me.

To copy what I make, badly, by painting slip onto an uneven bit of clay with a hole in and then sell it a pound cheaper to undercut me & in one stroke, remove the only third party seller I have, is I think, taking the p*ss. To then add insult to injury by ensuring that almost every wince at Kentwell wears one round her neck, ensuring that not a day goes by when I don't see one when I'm there - well, there was me thinking it didn't really bother me!

I created them for a reason and like everything I do, I can't do it badly, or quickly enough to sell them any cheaper than I do. And why should I?

I made them for at least 3 years before they were copied, I have drawn designs, photographs of early ones I made, photos of me with them at shows. I know they don't exist historically, there is no original source of them to go back to & make the same journey as I have.

I also know that Jim & Emma have the same problem with one of their popular pottery items, that they were asked to reproduce from shards by a museum - it was their hard work that created the museum replica they sell and within a year it was being copied & sold (cheaper) by this and another potter, with the same description & usage and identical form. When Jim & Emma created their replica, there was no archaeological drawing of this item anywhere, they used their expertise to help the museum reproduce this thing & work out what it was used for.

Emma was furious, but again, they can't afford to take people to court over it - all they can do is hope that people buy from the original people who put in the hard work of coming up with the original - that time we invest is a long time being re-paid.

And without originals like us - where would the copiers go?

I'm lucky - I work very hard as a demonstrator and sell the odd tile or necklace on top which buys me lunch at an event - Saturday in Bridgwater in Somerset I sold two necklaces - £6 - that paid for my cough medicine and tissues!

I wouldn't behave like this potter has done to another artist/potter - let alone to someone I considered a friend. And what does it add to their yearly sales? A pittance probably.

This business is hard enough as it is - we all rely on the goodwill and help & guidance of our friends to get started & to keep going. I couldn't have started without friends like Jack & Comphrey who taught me all I know about firing & clay and I hope I return the help I was given not just to them but to other new starters, like the nice chap on this forum who has started making & selling medieval tiles.

So my work is not just about being more expensive or better quality - I'm the daft idiot who drives hundreds of miles a year visiting museums & churches & spends hundreds of pounds on books just to satisfy my love for tiles. I'm the lucky one who gets paid for sharing that enthusiasm with people and I don't have to try & get them to buy anything from me in return. Just as well I don't have to survive on tile sales.


http://www.katetiler.co.uk
http://www.companyofartisans.co.uk
"In art as in life everything is possible as long as it is based on love" Marc Chagall

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Postby gregory23b » Mon Jul 16, 2007 10:56 am

"all they can do is hope that people buy from the original people who put in the hard work of coming up with the original"

And word does get around, I personally will not part with my cash to someone who has done this, I never need anything that badly enough to do so. I like Jim and Emma's efforts and respect them highly and to have that done by 'one of our own' is low indeed.

The bottom line Kate is that there are bottom feeders, people for whom effort of thought is too much effort indeed, I feel your pain re the necklaces, it is all too easy to undercut and do inferior work that a lot of people wont even notice.

"To then add insult to injury by ensuring that almost every wince at Kentwell wears one round her neck,"

Can't that be prohibited as wearing an out of period item?


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Postby Kate Tiler » Mon Jul 16, 2007 1:28 pm

Cheers love :) I'm probably a little off kilter in the depth of my rant today because I'm exhausted & have green mucus coming out of every orifice!

I probably shouldn't have raised Jim & Emma too as it's their rant, but I know how hard it is to sit down to make something based on a drawing that you have made of an item in a museum, or from a cross-section illustration in an archaeology textbook, let alone from a hand full of shards that only make sense because you have handled similar items repeatedly over years & years.

Long, long ago in the very early 90's before Jack had ever tried being an alchemist he came to visit me in Nottingham & we went to the castle museum to look at the medieval pots. This being in the days before museums were filled like tellie tubbie houses meant that there were case upon case of badly lit heaps of pots, all labelled properly and in detail. He spotted a medieval alembic, sat on a perspex stand which meant that you could see up underneath it if you lay on the floor...

Half an hour later I had sketched it for him while he lay beside me & told me what details he needed me to put in so he'd remember the internal workings and this was the start of his making alchemical ware!

It's too easy to think that just because people can buy one of Jim & Emma's pots for less than a tenner that that gives people the right to copy them. Each thing they make comes from a specific place, era and clay and they care which period you are re-enacting & will argue with you if you try to buy the wrong pot for your period!

I'm sad about being ripped off but I'm angry too. (it's easier for me to get angry on behalf of other people than it is for myself, but I guess that's a girl thing!)

I'm glad that I have the respect of people of your calibre Jorge :)


http://www.katetiler.co.uk

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Postby Lord High Everything Esle » Mon Jul 16, 2007 1:36 pm

I would like to record what an inspiration the people here (or mentioned here) have been to me:

Kate has given me lots of advice.

Jorge has helped out with artwork ideas.

Debs has inspired me to wear linen nether hose although I have not got a pair yet.

Jack Greene is a great source of inspiration.

I hope, in some way, I have returned their kindness and passed it on to others, so to speak. This is one of the lovely things about re-enactment. I have inspired people to become living history medical practitioners so much so that I now rarely get a paid booking to do that. Yet I am proud of them and hopefully played a part in the increasing standards in the hobby.

However, you can't stand still. That is not real life. You have to keep ahead of the game. You are all givers. Don't let the takers get you down. Imitation is the sincerest form of flattery. You know you are amongst the best. Enjoy that feeling.


Will/Dave, the Jolly Box Man and Barber Surgeon

"Physicians of all men are most happy; what good success soever they have, the world proclaimeth, and what faults they commit the earth coverest." Frances Quarles (1592-1644) Nicocles

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Postby Fox » Mon Jul 16, 2007 2:28 pm

As someone who isn't a re-enactment trader (tent peg empire aside :wink: ) this is an fascinating conversation.

(Oddly, as a tangent, I discovered that Victor James and I not only have the same tent peg supplier, but are charging exactly the same prices. Sorry, that's nothing to do with anything really....)

What I did want to say is that while I understand the frustration of being copied, particually if that's badly, you're only living in the same reality as most other commercial businesses.

You clearly have the right to stop people standing on your stall and making notes while examining goods they aren't going to buy, and you have the right simply not to sell to someone at all (both of which 2d appears to have employed); but there is very little you can do, ultimately, to stop someone knocking off what you do.

Backwards engineering a product is never as easy as one might think, and your one consolation is that all your reseach means you are producing the superior product.

Of course, while there's no legatimate way to stop it, I am always available on contract at a reasonable price.... :twisted:



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Postby Tuppence » Mon Jul 16, 2007 4:24 pm

it's one of the unfortunate facts of historical reproductions that you have absolutely no rights over what you're reproducing.

with costume you have a lucky get out that very little re-enactment clothing is actually a straight copy of something original - there's at least an element of design, meaning that it's covered by design right (automatic within the UK, you just have to ba able to prove you did something first...)


but like j says, they're bottom feeders who aren't worth the sh*** they produce.

just my opinion :D


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Postby Annie the Pedlar » Mon Jul 16, 2007 4:28 pm

The potter who shall remain nameless is not a bad person. I honestly don't think she realises how hurt Kate feels. I expect it was just a Yosser Huges moment - gissus a job, that's a nice idea, I could do that. Kate's up North, I'm down south, we don't go to the same fairs...........

:( except they both do Kentwell.............and the wincey wearer thing is rather horrid :(

A suing and going to court thought - my husband's firm had a rival firm sue them over a new invention. It cost thousands of pounds. (I think it was a million dollars) The rival firm lost and went into liquidation and is no more. All very silly as at one point the hand of friendship was offered with words like working together or buying the rights etc. Instead both firms have lost a lot of money and the only people laughing are the lawyers.



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Postby gregory23b » Mon Jul 16, 2007 4:33 pm

It pisses me off more because of the relatively small market we operate in, in which ripped off items can severely damage profits - I use the term loosely - and be a disincentive to people who are genuinely trying to provide good quality stuff that can be held up by real people - you know those pallid people that actually see the real thing - and say 'hey this is convincing' - a major accolade to those that get sort of comment. And then you hope said items make some sort fo qualititative difference to our game.

Fox is spot on in terms of the harsh realities of commerce and it is clear that certain people are more keen on emulation than innovation - because it is cheaper, it has happened to my lowly offerings amazingly enough, it is worse when the items are cheap due to either market penetration or source costs being lower as it means a price war that someone like me could not really afford to wage - nor can be bothered to.

I would say though that if you know your item is original artwork (as some of my stuff is, albeit well researched) you can point this out to the market organisers and ask them to be shown some sort of proof or remove the items from sale. I would go further and ask the trader to show provenance and if no joy then I would pubicly distance myself from their product so there is no confusion as to who is selling what.

The irony is that reenactors are almost like normal people, they like new stuff, if we all produce new (good) stuff then we are all winners, rather than whiners.

kate, I don't respect you I love you. ;-)

LHEE - I would say you are a top bloke in terms of your very positive attitude to referalls, it is much appreciated indeed.


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Isabela on G23b "...somehow more approachable in real life"

http://medievalcolours.blogspot.com

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Postby Annie C » Mon Jul 16, 2007 5:41 pm

Kate...both you and your work are brill, don't let the shits get you down....tea and cake and kitchen table chats and hugs available whenever needed up the road...or can do doorstep delivery! :D

on another note....i'm a potter too and have been looking for an untaken 'area' to concentrate on...Now I reckon that I have found one ...but also reckon that I will have only a couple of events or one David Smith market ( David if you read this can you send me traders info and availability for the autumn one?) before someone makes inferior copies copy and perhaps being a hobby potter will undercut me...so is it worth the hassel I'm wondering ?



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Postby gregory23b » Mon Jul 16, 2007 5:53 pm

"it's one of the unfortunate facts of historical reproductions that you have absolutely no rights over what you're reproducing. "

What about original work? just because it is historically based still makes it a new piece and therefore copyright.

Not that any trader has the time or be arsedness to do litigation, but at least that is something to wave about in a barney.


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Isabela on G23b "...somehow more approachable in real life"

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Postby Fox » Mon Jul 16, 2007 7:11 pm

gregory23b wrote:"it's one of the unfortunate facts of historical reproductions that you have absolutely no rights over what you're reproducing. "

What about original work? just because it is historically based still makes it a new piece and therefore copyright.

Not that any trader has the time or be arsedness to do litigation, but at least that is something to wave about in a barney.


Like you say, good luck with that. Sueing for copyright or patent is a big boys game, and is pretty much out of the reach of small traders. I don't claim to be an expert on the small claims court, but my understanding is you can only sue for actual, measurable loses. That limitation would copyright infringement very difficult. Out of interest, anyone know any bettter.

In some ways you guys are luckier, because at least you can dent a reputation or make someone unwelcome at a market.

The small world thing has it's benefits too.



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Postby Lord High Everything Esle » Mon Jul 16, 2007 7:16 pm

Recommendation and word of mouth is the best publicity you can have. Everyone knows the value of your work. Not only are they works of art but museum quality. Maybe they can't afford it just now but they are drooling and planning to buy something in ther future.

There is a pecking order in Living History purchases:

A nice big sword or gun
Some armour
Some clothes or cloth to make them
An authenty tent
A comfy bed
A nice big box to keep it in
Living History equipment.
A nice Living History box to keep it in.

Its the same with my boxes. They are cheap and cheerful but I'm not taking the bread out of anyones mouth because they would not be bought. However I am feeding a desire to have nice boxes and eventually people will decide that they can afford that special box that's a bit out of the ordinary.


Will/Dave, the Jolly Box Man and Barber Surgeon



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Postby gregory23b » Mon Jul 16, 2007 7:36 pm

"I don't claim to be an expert on the small claims court, but my understanding is you can only sue for actual, measurable loses."

Yes something like that, if there is a direct copy of someone else's work presumably an estimate of sales of that items would constitute loss as it could be argued that they might have been sold by the proper owner. I also wonder if you could try for passing off as originals of other people's work.

"In some ways you guys are luckier, because at least you can dent a reputation or make someone unwelcome at a market.

The small world thing has it's benefits too."

Totally my dear Reynard, totally :twisted:


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Postby Neibelungen » Mon Jul 16, 2007 9:29 pm

It's such a grey field the remaking (reproduction) of historical items and whole question of copyright/design right.

I went over this in great detail with a friend of mine who works in commercial law and deals with copyright/patents.

You can have copyright on something you make that's not physicaly copied directly from an existing object . (ie made with a mould of the original/photocopied etc). You look at something and make it yourself entirely from scratch. That protects you from having the item physically copied by a direct reproduction (mould/photocopy) but not from them borrowing the design idea/shape/colour etc. It means your object itself is protected, but nothing about it otherwise is. It really doesn't matter how much research and learning went into the making of it. Those aren't tangible factors. You could claim some level of industrial trade rights (registered design)on the grounds it's not been produced before in the last 50 years, but that involves legally registering the product and takes about 18-36 months and costs upwards of £2,000 to do.

However there is no design right on something made like that. So that's where most costume falls into. As it's not 'original' in the sense that it's never been made before. Because it has, as any look through a history book will show you. Most accurate historical items will fall into that category as well, and even bad examples as their's nothing particularly unique or original in the design.

Copyright/ design right on clothing (even modern) is a very gray area because you can just about find a pre-existing example of construction and design elements from fashion demonstrating you didn't have an entirely original design to begin with... hence there's little protection for designer clothing and knock-off far eastern similar copies. That's the reason the big labels make such a thing about the logo/badge on them. Copy that on the clothing and you have breached copyright law (as well as the criminal offence of counterfiting).

The whole problem with all of this is that the question of 'new' is the biggest issue. Nothing made from a historical design can be considered 'new' in an original sense. Hence there's no form of protection in 'design right' With historical clothes, all you are doing is taking a pre-existing idea and reinterpreting it. The physical characteristic of shape, colour and fabric are predetermined by other commercially available materials, hence can be freely copied buy others. Physically taking a pattern from an item isn't copyright infringement either, as the reproduction medium is the persons own labour and effort, likewise the manufacture of a visually identical piece of clothing isn't either. It is mechanical reproduction via moulds and photocopying that is protected. Since you have no copyright of the idea or appearance those can be copied freely by interpretation and redesigning/remaking it yourself, unless the item itself is your own unique creation, which with a historical design it isn't.

As to buying something, and removeing the label and selling it. There's nothing wrong with that at all. It's standard business practise. It's only slightly suspect under the sale of goods act if you claim to personally have made it by your own hand. It's perfectly reasonable to outsource or purchase goods and relabel them. Almost every supermarket and retailer selling their own brand items does that.

Lets take Kate's tiles as an example.
The design on historical ones isn't copyrighted or design righted as it's neither new or original. Only ones she might have created herself would be though, as these would be like any artistic work. 'Inspired 'by a historical pattern would give her greater grounds, but then somebody else can be 'inspired' equally by the same design sources to come up with something almost the same. Told you it was a grey area. Only if you could show something truly unique and original couild you make a stronger case. But then that's a modern item itself then.

Now making them half size and put on a string. Well their might be some case for that, but it's very grey. After all trinkets and talismans worn round the neck are nothing new. Reducing something in scale to be wearable isn't a unique idea. Perhaps the design on them might be new (as covered above) but the idea of it isn't. And you can't copyright an idea.
Kate would have to show that there's never been a single example of a pottery plaque worn round the neck to have any chance of claiming a copyright to it. See what i mean about just how grey an area it would be. I can think of several roman and pre-roman exaples as well as mezo-american and islamic examples to show a potery talisman isn't original.

Remedies and Action.
First thing to remember is it's a civil case and no criminal offence has occured. (unless you copy the designers label/logo, which is then 'passing off/ counterfiting which is a criminal offence)
Well first step would be to write to the person notifying them reasonably of the problem and asking them to respond within 28 days (a reasonable time frame) It's often the best way to start. Ask them not to sell any more or explain why they believe they haven't copied your item.

If your not satisfied then you have two options. Both probably require a solicitor and some degree of expense.
Ask a solictor to draw up a 'cease and desist' letter and threatening legal action if they don't.

Or make a small claims court case against them directly. However you can only really claims for loss of profit ( ie what you make after expenses are deducted) and rarely could get anything putative. Sometimes it's just the satisfaction.

Bear in mind though if you go this route, it needs to be grounded on a reasonable case and presented in a valid legal framework. That's why you need a solicitor. Loose and you'll end up paying the other sides costs as well as your own. It's like libel.... cost money to do it and costs even more to loose So think very very hard and ask yourself if you really do have a case.

Hope that helps people understand a bit more.

(given a little later edit and expansion to add clarity/confusion after a later reading )



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Postby Neibelungen » Mon Jul 16, 2007 11:02 pm

As a postcript

Kate might have more luck in claiming copyright on a historical tile design on the grounds of first publishing them compared to actual copyright on original work.

If you could show that the design had never been seen before and made public ie displayed or published, then you can claim that as a copyright in itself.

Do bear in mind though, the producer of a book/illustration/ museum where you saw a tile design from, could make the same sort of claims too. That's where most museums base their copyright provisions on research/ items in their collection from.



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Postby Tuppence » Mon Jul 16, 2007 11:26 pm

What about original work? just because it is historically based still makes it a new piece and therefore copyright.

Not that any trader has the time or be arsedness to do litigation, but at least that is something to wave about in a barney.


precisely.

So that's where most costume falls into. As it's not 'original' in the sense that it's never been made before. Because it has, as any look through a history book will show you. Most accurate historical items will fall into that category as well, and even bad examples as their's nothing particularly unique or original in the design.


patent office (now ipo) think differently.

clothing in general is a different thing, because not much, even a 'new' design, has not been done before.

it's not the whole you're looking at, it's the individual components and the way they're put together.


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Postby Neibelungen » Mon Jul 16, 2007 11:58 pm

Unfortunately it's practically impossible to demonstrate a claim to copyright on a piece of historical clothing.

There's not originality in the design, as it is nterpretation from historical examples. The closer and more accurate you are to an historical example the further you go from any thing new and original.

Likewise the materials. Those are comercially freely available so there's no originality there. Colour combinations are more original in that sense, but somebody else using the same colours is still within the field of whats available. .

Much the same applies to decoration. As these are chosen from available commercial items it's combination isn't going to be unique in itself.

Even if you commissioned a made a trim or fabric yourself, if you've taken the design from a historical example you loose out on the grounds it's not a 'origin' idea. Somebody else can equally see the same source and make the same design.

Patterns: That's slightly greyer, because it's methodology rather than a uniqueness of something new. It's the means you employ to produce a finished item therefore it's not really covered in copyright terms. You could perhaps claim patent, but it's unique quality isn't that apparant in itself.

The problem with historical clothes especially and clothing in general is defineing the new and original characteristic that isn't just the product of adding random factors together that couldn't happen by somebody else drawing from the same material availability or sources.

a clasic example would be Solider-Soldier from TV trying to copyright the blue over white plume they designed for their fictitious unit. They could copyright the regimental badge, but a blue over white plume isn't new, just a particular colourway.

An interpreted design based off something from history might be more viable, but equally the ideas and elements composing towards that design are not in themselves new or original to any degree. and hence are freely copyable. That it could come out looking almost identical isn't itself an infringement and would be almost impossible to prove.

Look at the court case from the Da Vinci Code. It lost because although each book was itself copyrighted, the ideas composing the elements were not were not unique and new in themselves.



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Postby Neibelungen » Tue Jul 17, 2007 12:41 am

And if you thought you might be able to claim design right on an article of clothing (theres no difference between modern clothes and historical clothes)

(3) Design right does not subsist in—

(a) a method or principle of construction,

(b) features of shape or configuration of an article which—
(i) enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function, or
(ii) are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part, or

(c) surface decoration.



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Postby Neibelungen » Tue Jul 17, 2007 1:23 am

I'll try and tie it all together.

You make a t-shirt (houpland, joupon, wedding dress etc etc )with a design on it.

The shape, cut and style of the t-shirt are not in themselves copyrightable items. It's a function of the item in it's commonplace nature.. ie Like almost all clothing, it's been seen and done before in one form or another. Partly as well methodology in making something is not in itself a copyright unless you could show it had never been done in that way before in some manner or function of a commonplace nature. ... then you could apply for a patent on it (costs money to determine and isn't automatic)

The design of the t-shirt isn't new or entirely original and it's a part of the comonplace nature of the item. so no design right.

Method of construction isn't a design right (covers the pattern you made it with)

Surface decoration : ie the colour, decorations added ,surface texture, having a picture on it You have no design right there.

What your left with is the actual design you put on the t-shirt... that may or may not have a copyright in itself... And that has to go through the same process..


If you took the design from a historical source you have two things..

a) if you copied it directly by mechanical means (photocopy / mould/ etc) then no copyright since its a direct copy. Somebody can directly copy your copy

b) You painted, draw carved etcto be a close copy from the idea/image of the original.. That you have some copyright on for your own personal work, . But no copyright in the idea/shape/style of the original. It just means they can't directly copy the bit you did. but they can make their own intepretation which could come out identical to yours.

c) Made it from scratch Then you have full copyright and perhaps design right depending on how it fits into the above . That falls into the realm of being new, artistic and fixed. Hence fully copyrighted.
Remember though, if it's inspired from an original they can still make something to look identical to yours because they can follow the same ideas for inspiration, they just can't make a direct physical copy from yours. ( in essense they can look, measure but not touch). The more original and new the fixed form is the stronger case you have.

Swap design for designer logo and you have why anybody can copy clothing from any source with impunity and make it identical but not the designer label on it.

And there's no difference between modern clothes and and historical clothes in law.

And just to annoy you even further:

Somebody takes a picture of something you made. Makes their own identical version but puts the picture of yours up on their website next to a picture of theirs

Absolutely nothing you can do as they have full copyright on that picture.



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Postby gregory23b » Tue Jul 17, 2007 9:20 am

"Makes their own identical version but puts the picture of yours up on their website next to a picture of theirs

Absolutely nothing you can do as they have full copyright on that picture."

What about the object they made a direct copy of, assume it is original?


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Postby Neibelungen » Tue Jul 17, 2007 10:16 am

There are some restrictions restrictions on what somebody can do with a photograph of an item, since the photo is a seperate item to the original.

That's why photographers often will sell pictures from a catwalk show to overseas manufacturers who will have a knock-off in the shops before the designers have got theirs out.

Certain items that you can claim full copyright on allow you to control the use of images of that item, like a painting or a fully original item. Clothing is different as it has limited or no copyright in itself though parts in the clothing could be copyrighted to some degree.

If you stuck their picture of your original up on your own website you'd be in breach of their copyright., even if the original picture breached yours.

It's why many museums and galleries and fashion shows don't allow photography, or only allow it under agreed terms and conditions

There are certain restrictions on photographing originals, as it does infringe your copyright , however displaying it publicly (permanent) nominally puts it into the same field as freelance photography of people at events ( see the BNP advert thread). Galleries get round this by setting conditions on their entry terms.

Public display doesn't reduce your actual rights in itself, but leaves open the implied position that you've consented towards allowing that image. It's a complicated grey area even today. It's also muddied by the fact that the laws don't clarify where a commercial object and a work of art boundaries lie.

A lot depends on the intent of the photo and the commercial exploitation derived from that picture. ie. selling it as a print or obect in itself rather than as a mere illustrative device. Where copyright infringement is incidental to the whole picture (like a logo on a article of clothing) then it's as fuzzy as ever.

However, because they may have infringed your copyright by taking the picture doesn't give you rights to the picture, only what they can do with the picture.



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Postby gregory23b » Tue Jul 17, 2007 10:39 am

But they are still in breach of copyright of an original if they make unauthorised versions of it, notwithstanding the issues of the image itself.

There have been cases of traders taking photographs of other people's wares and then miraculously they appear at later events (also has happened to me oddly enough - although not the reproduction as yet). Whilst the photos themselves are theirs they do not have carte blanche to copy - again assume an original item. But then if I see a copy of either my work or of someone's I know not to have authorised such things I can go direct and check with the originator, that way I know where to spend my money and let others know in the process.


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Postby Neibelungen » Tue Jul 17, 2007 10:55 am

But they are still in breach of copyright of an original if they make unauthorised versions of it, notwithstanding the issues of the image itself.


Yes, that's true.

But it does depend on how complete you have to a copyright. I'm still not entirely clear myself if it's an either/or case. Only a court judgement would be able to decide that.

It would have to be something new and original to qualify. Anything close to being a copy of a historical, closely modelled on a historical, or even inspired by a historical leaves you open to the claim that you've no copyright to begin with.... hence no position to stop anybody else from copying your idea.

At the end of the day though, regardless of how much copyright you have or don't have. It's in all practicality determined by how much money you have to be able to enforce that through the courts.

Even if it's blatant and obvious, if you can't enforce it, it's meaningless.



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Postby gregory23b » Tue Jul 17, 2007 11:04 am

"t's in all practicality determined by how much money you have to be able to enforce that through the courts. "

totally.

In our small sphere we only have recourse to collective action, withdrawal of trade - ie not buying their fake stuff and letting others know and effectively blackballing them where possible.


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Postby timbobarnacle » Mon Jul 23, 2007 10:24 pm

kate, I think your work is top class, and clearly you are an expert in your field - people may imitate, but that is all, they cant duplicate your knowledge and experience. as has said before, ignore the takers.

PS, thanks for the intro as Henry VIII again

Tim


fast removing B&Q boxes from re-enactment, and hoping to do the same for sash cord guy ropes

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Postby Tuppence » Tue Jul 24, 2007 12:33 am

nieb, forgive me, but from where did you graduate in ip law??

presumably, since you're directly contradicting the relevant body, you have???


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Postby Tuppence » Tue Jul 24, 2007 12:53 am

just to clarify, I'm not talking about straight reproductions here, such as uniforms, but about newly designed items made in a period style.


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Postby Neibelungen » Tue Jul 24, 2007 3:00 am

nieb, forgive me, but from where did you graduate in ip law??

presumably, since you're directly contradicting the relevant body, you have???


I didn't .

However an ex of mine studied business law as part of her degree and I spent a lot of time going through the work with her on the course. Another good friend of mine is a barrister specializing in commmercial and contract law and I went through a lot of these issues with her.



(3) Design right does not subsist in—

(a) a method or principle of construction,

(b) features of shape or configuration of an article which—
(i) enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function, or
(ii) are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part, or

(c) surface decoration.

(4) A design is not "original" for the purposes of this Part if it is commonplace in the design field in question at the time of its creation.



I'm not contradicting them. That's an exact passage from the relevant legislation. Copyright Design and Patents Act 1988 with amendments Section 213

The difficulty in definition comes from the terminology of an item being 'original' and 'commonplace'

There's very little in clothing that can ever be defined as original, even a modern style if it's based of something made several hundred years ago. That's definately not 'original' then, just an embelishment of something pre-existing.

There's very little case law dealing with successful defence of a design right claim on clothing. Even in american law (which it's much heavier defence of patents - which are not recognized in European courts) very little clothing has ever been able to defend a clothing claim that isn't a deliberate act of copying or passing off. In fact American law has very little protection on clothing in comparison to UK law,

It doesn't matter what period you base the original style from. The law doesn't recognize any difference between something made 2 months ago or 200 years.

See Lambretta Clothing Co Ltd v Teddy Smith (UK) Ltd (2003)
http:/www.hmcourts-service.gov.uk/judgmentsfiles/j2671/lambretta-v-next.htm

Walton v Zaps (2007) Patent office ruleing

Scholes Windows v Magnet [2002]
References the relevance of victorian window design to modern design

The main point I was trying to convey was that though you can claim copyright and design right to any design, one that is based on an evolution of historical ideas and designs has substantially less grounds for protection than something truely unique.

You can claim some degree of protection under existing IP laws, but they are not as clear-cut as they might seem to imply. The boundaries of originality and the diferentation beteen functionality and original design are not entirely explicit. You can control design features to some extent through IP law, but with clothing the surface embelishment is not always considered a factor. Functionality (a strap or support) may well be a part of the construction or the commonplace nature required in a article. That leaves you with design elements which may well be unique, but also there are only so many particular ways to pleat a material. In essence then the design part may well be only those aspects incidental and seperate from the practicality.

Take your lilac dress... a one shoulder princess line isn't a unique design element in itself. The embroidery is a surface feature though the design of the embroidery may itself be a copyrighted item. The colour isn't unique either, nor the actual choice of material. What you left with is those elements that make your dress unique from any other one shoulder lilac princess line dress. That's design righted and protected.

All it takes is a few subtle changes and a little evidence to show where you could draw design ideas from and you have grounds for a reasonable rebuttal.

Also worth noting is that under S51 of the act it's not an infringement of copyright to make an example of a garment from a drawing or sketch of a design.

If it was so easy to protect a clothing design then you'd never see the type of cheap copies of designer work that regularly grace the pages of most fashion magazines (look at the back page of the Mail on Sunday magazine every week)

UDR (unregistered design right) might well subsist in almost anything we make that isn't trying to be a direct copy, but it's a civil case and matter of money to prove it, regardless of the morality and justice of any individual case.

It might be worth knowing that under newer European law of UDR, (2003?) though you can only claim a 3 year exclusivity on a design, you actually have stronger rights that you receive under British law. This primarily draws on French copyright and design law which has always been much stronger than UK law.

There is in fact an untested (in the UK) judgement (Bridgeman Art Library v Corel Corporation) based on British Copyright law under the Berne Convention, regarding the role of originality. Though primarily concerned with photographs of painting, it essentialy argues that conversion from one medium to another without the employment of of any unique input of true skill does not convey copyright, (eg a photo of a museum painting, the reproduction of an exacting copy of a painting in paint etc.) and challenges the validity of the 1863 Graves judgement on copyright.



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Postby zauberdachs » Tue Jul 24, 2007 2:22 pm

I used to make custom fire performance equipment and, being modest, my stuff was among the best. I gave good service, it was hand made, affordable and reliable. One day I got a random email from a bloke saying "my x has broken, can you send me detailed instructions on how you made it so I can fix it?"

.....

What a retard. Imagine me saying "sure mate, have four years of experience, expense, trial and error for free so you can go make your own copy." Turns out he wasn't even a former customer, he was just trying it on.

On a re-enactment note: recently I was ordering off a trader and they charged me £15 postage for a pair of hose. Steep but I wasn't thinking and took their word for it. Item got here, next day delivery. Clearly on the label £4.50 .... this made me see red all morning.... It's a con and shameful for anyone who does it...


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