Aug 31 2010

copyright infringement – yeah, I don’t think so.

Published by at 10:54 am under amy's head,crafty,jewelry,likes & irks,likes & irks

I find myself in the very interesting position of being accused of copyright infringement.

Specifically, these pieces:

shenandoah pendant

shenandoah pendant

I sell these finished jewelry pieces, and I also sell supply kits, complete with the necessary jump rings, findings, and a page of tips for construction. I was asked repeatedly by other chainmaillers for a kit until I finally did (seriously, if it weren’t for Jessica in Ontario, there would be no kits!!) I also freely give the ring sizes I used to others when they ask – no kit purchase required. I do not however, sell a tutorial, instead, I point to the Maille Artisans site, as I firmly believe that there are plenty of free chainmaille resources on the internet and why re-invent the wheel? (Also – I suck at tutorials.) edited to add: I do now have a written and video tutorial up for these pieces right here, enjoy!

The accuser claimed that it is an infringement of her pendant on Etsy (I am not going to put her image here, you’ll have to click to see. Please do click through though, because this post will make much more sense if you see what I’m talking about).

INSERTED 9/1/2010 to add~~~~~~

I have been accused of being “one sided” which, I think is a stretch, but here is the conversations from Etsy, preceding our email interactions below.

Etsy time stamp: 26 August 2010 9:42am EDT
I’m sorry to have to contact you about this but this design is copyrighted. I invented the Stepping Stones weave and copyrighted 8 specific designs using it. This pendant and these earrings:

http://www.etsy.com/listing/36361488/shenandoah-earrings-sterling-silver

are one of those designs.
UKCS Registration Services © 323379
Please could you either remove these from your shop and anywhere else they might be or change the design slightly (e.g. if you replaced the bottom ring with one the same size as the top it would not be one of the copyrighted designs).
I would rather not get Etsy’s legal department involved as this would be stress for both of us so please take this as a friendly ask.
Yours sincerely
XXX

Etsy time stamp: 26 August 2010 10:16am EDT
Thanks for contacting me Sara. Could you please send me a copy of the copyright and the other 8 designs? I would like to see for myself please.

Etsy time stamp: 26 August 2010 10:35am EDT
OK I am not required by law to do this but here are photos of the certificate
[snipped]
with their address
[snipped]

and the 8 designs are
[snipped]
although this is copyrighted I allow people to use it

[snipped]
the one in question here and I have been assured by legal counsel that hanging the other way does not change the design enough.

[snipped]
[snipped]
[snipped]
[snipped]
[snipped]
[snipped]

XXXX

THe next 3 messages were the fact that pictures didn’t come through asking for my email, I gave it, and then she said, “On the way”

Thanks, I will look for them. The pendant and earrings are deactivated, and also the kits I sell in my supplies shop. I’m confused as to why the bracelet is OK? I just would like to read what the copyright is so as to better inform myself.

Thanks again!

26 August 2010 10:51am EDT

~~~~~~~ END INSERT.

I was at first aghast, but then grew a bit suspicious. You see, I learned the Stepping Stones weave right on the Maille Artisans site.

For the non-maillers out there, the The Maille Artisans site is a fantastic resource for anyone interested in chainmaille, and is self touted as “an international community of artisans and volunteers dedicated to the advancement of the chainmaille art form. We aim to encourage the sharing and spreading of information, archiving as many techniques and weaves as possible.”

A weave is a pattern of rings linked together in a certain way. The weave can be used alone, or it can be tweaked with different ring sizes or embellished as the weaver sees fit. Chainmaille weaves can be used for jewelry, armor, clothing, accessories – the list is endless. The Maille Artisans site hosts a weave gallery, free tutorials, member galleries of photos, and forums for chainmaillers.

I have seen the Stepping Stones weave used countless times on the site and off with no mention of any copyright or wrong doing, so when I made up my own Stepping Stones pieces, I had no thought of copyright violation. In fact, I prided myself in creating a piece that actually differs significantly in look.

Here is a picture of the Stepping Stones weave as is posted on the maille artisans site:

[Click to see the Weave Photo – removed due to copyright issues]

Here is a picture of my bracelet, based on the same weave. I do credit the weave itself in my product description (“based on the Stepping Stones weave”):

(linked to my blog post from my very first attempt at this weave. Later renditions show small changes from this one, mostly in the fact that the small rings meandering in between the large rings connect in TWO places instead of ONE, as is shown in this photo.)

You can see that the ring sizes I chose makes for a very different look to the bracelet, which I why I choose to name my piece “Shenandoah” – it has the look of a winding river. After I made the bracelet, I completed the earrings and pendant as well.

It is also worth noting, that my accuser had NOT tried to enforce her copyright against my bracelet — ONLY the pendant/earrings. This is NOT because she did not hold a registered copyright on them, but because she chose not to.

Back to the subject at hand, you can understand my suspicion when a weave tutorial is posted on the Maille Artisans site, freely available to all, and then the creator of this weave, all of a sudden begins enforcing her copyright. [9/1/2010 INSERTED] I am not claiming that it is not within her rights to enforce her copyrights, it just seemed fishy to me and it roused my suspicions enough to investigate rather than rolling over.[/END INSERT]

I asked the accuser to see the copyrights, and while I was waiting, temporarily took my Etsy listings down. She acquiesced, and sent them to me. She sent me the copy of the certificate along with photographs of 8 designs, including the Stepping Stone weave in general. Again, as I mentioned before, she stated that she is not enforcing the copyright for the generic Stepping Stones weave.

The UK copyright certificate was dated August 12, 2010, which she explained this way:

… The registration date is 12th August this year but intellectual property copyright is legal from the first recorded instance of the design which can be found on my Flickr account.

The [pendant] in question [is] here and I have been assured by legal counsel that hanging the other way does not change the design enough.

She included photos of the 8 registered designs, which did include the general Stepping Stones weave. (If one is curious as to which designs she has registered, they can look in her flickr stream as she has indicated the copyright on all the photos in question, as of this blog posting.)

The registration date was an instant red flag. The registration had just been done in the past 30 days. The weave has existed on the Maille Artisans site for over two years. What is up with this? She has registered her copyright on a weave that has been circulating on the internet for over two years, and then turns around and tries to enforce it?

Now, now Amy, hold on — while she registered the general Stepping Stones weave itself, she stated in her email that she is NOT enforcing that particular copyright, which she must know is impossible. Not only could it not be enforced without an army after all this time — it’s been made hundreds of times (maybe thousands?) by maillers internationally — but the question of whether the copyright would actually hold is in question. The Stepping Stones weave is based on the Japanese 12-in-2 weave, and has close ties to Hodo as well, what if someone had used different ring sizes as I had — is it really even copyrightable? She chose to sidestep all these questions quite neatly by stating she is not enforcing the copyright on the weave.

Well, very good then.

So what about the design in question? The other designs she included in her email were very specific, they were stunning, in fact, designs using the Stepping Stones weave. Some pieces had a very specific look and use gemstone drops. Surely these are copyrightable? I would venture to say (though I am not a lawyer, nor do I play one on TV) yes, absolutely!

But what if someone else had never seen one of those designs?

What if someone used different sized jump rings?

What if her design is for 14 gauge rings, and someone else’s is 16 gauge?

What if, say, someone else’s pendant used 11 doubled jump rings around the outside instead of 10, as hers does?

What if someone else worked for hours piecing together, taking apart, and then reconstructing, trying one size, and then another, finally deciding on using TWO different sized connecting smaller jump rings — one size connecting to the inner big ring, and then another ring only .25mm smaller than the first to connect the outer jump rings, so that no rings bunched together from the rings being too loose, and so the pendant, when finished would be super stiff and not at all floppy? (Sorry for all the non-maillers that I just totally lost!)

What if that someone (OH, OK, I ADMIT IT, IT’S ME!) shed blood and tears over getting those pesky outer rings THROUGH those super tight connecting rings, causing frustration and profanity and I am not too proud to admit, the hurling across the room of said pendant/earrings?

OK, I’m not sure how much a courtroom judge would care about the throwing across the room part, but my point is — I worked hard at my pendant/earrings, I determined my own sizes, I used my own construction method, and this part is key —

I HAD NEVER SEEN HER PENDANT BEFORE, EVER.

I don’t claim to be a copyright lawyer and so make no claims as to whether these are legitimate legal grounds in a copyright case, but the fact that I independently came up with my earrings and pendant, having never seen HER pendant before seemed pretty compelling to me.

I had initially removed my listings when I received her copyright claims, and so the first order of business seemed to be to investigate further into the dates of each of our pendant/earring designs. Going by what she told me — that the copyright is from the “first recorded instance of the design which can be found on my Flickr account” — I went there to go looking.

Mine weren’t easy. I hadn’t posted my first instance of my earrings/pendant in my jewelry set, but I had uploaded a few crappy iphone photos straight to my photostream. A little careful looking in the archives by date and I had found my first earrings:

http://www.flickr.com/photos/crazymokes/3877310209/in/dateposted/

These are dated September 1, 2009 (taken and posted to flickr on the same day). I can also corroborate these photos with posts made during the same time frame to another chainmaille group.

Then I took a careful look at the pendant in her flickr account. The obvious photo that I saw was dated December 8 2009 (taken December 8 2009, posted to flickr December 9, 2009):

http://www.flickr.com/photos/redcrow/4170865099/sizes/s/in/set-72157611096575542/

This is several months after my own photographic evidence. Still, I had to go hunting in my own archives to find my picture, so I gave her the same benefit of the doubt, looking through each month carefully to see if any sign of this pendant had been missed.

I found nothing.

Many of her other designs were created in 2008, but this one, even with careful picking through the archives of her photostream, did not appear until December 2009.

After all my poking around, I grew more and more convinced that my pendant/earrings actually predated hers, and so I emailed her to that effect:

Thank you for forwarding [the copyright information] to me, I appreciate it, especially as I could not find the designs by the number you referenced in the UK design search.

I believe my pendant/earrings design preceded yours, as mine is dated October 2009, and yours dates December 2009.

http://www.flickr.com/photos/crazymokes/3877310209/in/dateposted/

Did you create this piece previous to December 2009? I see others dated in 2008, but not this specific piece.

Her response to this was a generic link to the Stepping Stone weave:

yes all the pieces were originally made in the same year as the Stepping Stones weave was submitted to MAIL. http://www.mailleartisans.org/weaves/weavedisplay.php?key=803
Dated February 2009

She had not pointed to any proof that her pendant came before mine. Regardless, I really wasn’t sure what to do at this point. I thought about posting my dilemma to the Maille Artisans site, but I am not an active poster on the Maille Artisans site and was afraid of being lampooned as a relative upstart compared to the maillers who have been there for many years (my accuser included).

I thought maybe I could let it go.

I tried to let it go all weekend, but it festered and would not stop. She hadn’t answered my question. My pendant had been created first. Hadn’t it? Wouldn’t my copyright predate hers?

Finally, I decided I couldn’t let it go. Even if she had created her pendant before mine, I had created my earrings/pendant independently, with no reference to hers (which is easy to prove, since I couldn’t find any record of her pendant before December 2009).

I went looking on the Maille Artisans site also, where she has shown a history of posting her designs in the forum.

I think she may have initially posted this pendant in this thread:

http://www.mailleartisans.org/board/viewtopic.php?t=14641

But then afterward deleted the photo and her comments due to others wondering about the legality of using “Twilight inspired” in connection with her jewelry. This thread date matches the date of the pendant appearing in her flickr stream, as early December 2009.

This strengthened my resolve, and I emailed her one last time:

XXXX, I don’t see any photos of that specific piece made before December 2009. I’ve looked through your flickr stream carefully and the Maille site. If I am missing it, please point it out directly to me. If not, then my pendant predates it and you are violating my copyright.

I will be reposting my listings on Etsy.

I immediately reposted my listings on Etsy — both for my finished jewelry, and also for my supply kits — Again, please note, that I do not profit from selling tutorials of chainmaille weaves that are largely available for FREE all over the internet. I feel quite strongly about this. I instead point customers to these resources, rather than charging for my own tutorial. (I would love to take credit for this noble act to forward the art of chainmaille — (which I do faithfully believe), but the fact is I’m just too lazy to even make a free tutorial. edit: I have since overcome my laziness, and have made many FREE chainmaille (and other jewelry) tutorials, which can be found here. There are gorgeously done tutorials out there if one would care to google cough cgmaille.com ahem.)

After my email was sent, she responded in kind:

Just because I don’t have a photo on Flickr of that date does not mean that it wasn’t made before yours. If you relist on Etsy I will be forced to issue a take down notice and inform my legal council.

I did not respond.

She soon emailed me a cease and desist form letter, giving me 30 days to act, or face dire consequences. I did note that she quoted U.S. law, whereas before, she was acting on a UK copyright registration.

[INSERTED 9/1/2010:

Here is the exact email she sent me:

It has come to my attention that you have made an unauthorized use of my copyrighted work entitled Stepping Stones pendant (the “Work”) in the preparation of a work derived therefrom. I have reserved all rights in the Work, first published in December of 2008, and have registered copyright therein. Your work entitled “Shenandoah pendant” is essentially identical to the Work and you have, by your own admission, used the Work as its basis.

As you neither asked for nor received permission to use the Work as the basis for “Shenandoah pendant” nor to make or distribute copies, of same, I believe you have willfully infringed my rights under 17 U.S.C. Section 101 et seq. and could be liable for statutory damages as high as $150,000 as set forth in Section 504(c)(2) therein. Violation of copyright law is also considered a federal crime when done willfully with an intent to profit as set forth in 17 U.S.C. Section 506(a)(1)(A) and 17 U.S.C. Section 506(c) therein. Criminal penalties include up to 10 years imprisonment and fines of up to $2,500 under 18 U.S.C. 2319.

I demand that you immediately cease the use and distribution of all infringing works derived from the Work, and all copies of same, that you deliver to me, all unused, undistributed copies of same, or destroy such copies immediately and that you desist from this or any other infringement of my rights in the future. If I have not received an affirmative response from you by September 20th, 2010 indicating that you have fully complied with these requirements, I shall take further action against you.
XXXX

I did not respond.

She followed up with this final email:

Just to prove my point I have uploaded the originally made pendant to my Flickr as you know the date of when the photo was taken cannot be changed (it’s a rubbish photo which is why I didn’t use it before), it is dated Feb 2009, predating yours and this is when the copyright came into being. The date of the registration of the copyright has no bearing on this.

I was instructed by my legal council to send the last email but I do not expect you to abide by all the demands set out in it. However if you are going to continue to post/sell the design and sell kits credit should be given to me for the original design. If you fail to do this I will take further action.

Here is the uploaded photo that she is referring to.
http://www.flickr.com/photos/redcrow/4944800152/in/photostream/

I do not accept this as any sort of proof, as EXIF data is easily changed through a myriad of downloadable freeware. Regardless, seeing as how she had to upload it to prove herself, it wasn’t on the internet anywhere September 2009, when I created my pendant.

The entire episode is interesting, especially in light of the 5 pointed maille flowers copyright fiasco — which I will not comment on.. Oh, how I wish to comment on, but I will refrain.

As for me — I won’t be responding to my accuser via email any further. Aside from this blog post (which I admit is a response of some kind) if she would like to prove her claims of infringement, she is welcome to do so in court.

-Amy

9 responses so far

9 Responses to “copyright infringement – yeah, I don’t think so.”

  1. Azeron 31 Aug 2010 at 4:54 pm

    I’m sorry to have seen this, and sorry for your trouble. I happen to be acquainted with the person in question, and this has lowered my opinion of them.

  2. amyon 31 Aug 2010 at 5:00 pm

    Thank you so much Azer, I appreciate your kind comments.

  3. my2collieson 31 Aug 2010 at 11:15 pm

    I’m looking forward to her receiving a real cease-and-desist from the owners of the Twilight franchise.

  4. Nancyon 01 Sep 2010 at 1:15 am

    Amy, I’m sorry you’ve been subject to her pathetic drama queen antics. Your maille is beautiful! Thank you for standing up to an obvious copyright troll. I will now go and happily check out your Etsy site :-)

  5. Legba3on 01 Sep 2010 at 8:58 am

    So now you are using my image from MAIL without my permission despite MAIL’s very clear copyright statement?

  6. Laneaon 01 Sep 2010 at 9:13 am

    Oh my. I’m so sorry. I’ve had to run down folks on the other side of the problem who’ve tried to see copies of a bag I posted a tutorial for on the web, but the ludicrous copyright claim thing doesn’t look fun. Your work is gorgeous, and I don’t think that person has a leg to stand on.
    Lanea´s last blog post ..12 books in 12 monthsbooks

  7. amyon 01 Sep 2010 at 9:49 am

    Legba3 is right of course, I removed the photo in question and replaced it with a link.

  8. Jeffon 02 Sep 2010 at 10:47 am

    Amy, you are well within your rights to use the weave photo of Stepping Stones, under the Commentary/Criticism category of the Fair Use doctrine. Don’t let her sabre rattling bully you into taking it down.

  9. amyon 03 Sep 2010 at 3:14 pm

    I’m closing comments for now – Sara and I have come to an agreement and there’s no sense in beating a dead horse. If you would like to comment to me privately, please feel free to send me an email: amy at crazymokes.com