56 STATE OF THE MAJORS 2018 used to allow inventors to protect their inventions for a limited time, though they must be disclosed to the public to promote science. According to Yood, copyright law is the most applicable when it comes to ensuring a jewelry design does not get replicated. “The easiest and most logical way for jewelry designers to protect their work is using copyright,” she says. “You actually obtain copy- right simply by ‘fixing it in a tangible medium’—that’s the technical language—but really that just means drawing, taking a photo or cre- ating a mold of something. As long as you’re fixing the idea in some- thing tangible, you now have copyright rights on that. It’s automatic; you don’t need the government to tell you that you have it.” Yood recommends, however, obtaining official copyright registra- tion from the U.S. Copyright Office as “a legal formality, (to) create a public record of the basic facts of when you created it.” For a $35 fee, officials will decide whether a work (or group of works, such as a collection) rises to the level of originality and there- fore will be granted registration. This is where copyright law becomes murky. Certain universal principles apply to copyright registration. A plain gold band, for example, can’t be afforded copyright protection because it’s been made before and can’t be attributed to one designer. The utilitarian aspects of jewelry, like a clasp, also are not eligible. Beyond that, the process by which registration is granted is largely subjec- tive, dependent on the case being made for registration and the opinion of the official reviewing it. “You have no idea which examiner is going to review your work,” Brennan says. “I don’t want to say it’s luck, but it depends who you get in the copyright office, whether or not they’re going to accept that your creation rises to the level of originality where it receives copyright protection or not. You can dance around with what the technical definition is but, at the end of the day, it’s someone making a judgment while looking at an object.” Brennan still recommends applying for copyright registration (collections can be submitted in their entirety in the “multiple works” category) because it al- lows for claims of copyright infringement to be litigated in court, if it is granted. The nature of Wwake’s work, which is unique to the market for its diminutive scale, ethereality and distinctly hand- made feel, has made it difficult for her to obtain registration. “Even though my sense of proportion and the orientation of my stone setting is very specific to the way I work, those aren’t things that are easy to put on paper in the copyright office so it’s tricky to have them grant a copyright for the type of work that we do,”Yau says. “That’s something I’m really up against with my actual style.” Even when brands are able to obtain copyright protection, the cost of actual litigation deters many designers from taking perceived copiers to court. Kalan, whose Fireworks collection is copyrighted, says: “Sending lawyers after these people and taking them to court is going to be very costly. In a way, it’s like focusing our energies into negativity, instead of thinking of what else we could do to move forward. “I guess that’s what we’re doing—trying to not think about it. We’re not Chanel, we’re not David Yurman, where we can afford a big team of lawyers.” “It’s a business decision,” says Brennan. “How much money do you have, and how much do you want to spend?” THE DEMOCRATIC ROUTE When a copyrighted design is knocked off (keeping in mind that a design is technically copyrighted as soon as it is fixed in a “tangible medium”),Y ood advises that designers’ first line of defense should be to obtain copyright registration if they haven’t already and send a cease-and- desist letter through their attorney to the offending party, a practice that is quick and easy to do for an intellectual property lawyer and shouldn’t be costly. But if a designer doesn’t have a regis- tered copyright, there are ways to take matters into her or his own hands. “If you do not have a registered copyright and you can’t get one it will ab- solutely be more difficult to get (copiers) to stop,” Yood says. “I think this is where people tend to go the Diet Prada route, naming and shaming.” Diet Prada, the Instagram watchdog famous for calling out knockoffs and highlighting other fashion industry foibles, was instrumental in spreading the news about the Lulu DK x We Wore What costume line that, many believe, mirrored the pieces of many contempo- rary fine jewelry designers. The negative publicity also is likely what propelled Nordstrom to discon- tinue the styles that were asserted to be copies. (Nordstrom, Lulu DK and We Wore What’s Danielle Bernstein did not respond to requests for comment on this story.) The social media effort was partic- ularly useful in this case because it’s likely many of the original fine jewelry designs aren’t eligible for copyright registration—several utilize ancient and modern symbols and their originality comes from the precise way designers are repurposing them today, even if simi- lar designs can be found in the past. THE STATE OF THE MAJORS THE DIAMOND INDUSTRY JEWELRY DESIGN THE COLORED STONE MARKET Intellectual property attorney Mary Kate Brennan says that before a brand even worries about copyright registration, it should register its company name as a trademark. Businesses that don’t are at risk of finding out that their name is already taken and having to buy it back. “A paramount issue for all companies is what your brand is called and what protection you have for it, because that’s your most valuable asset. That’s something to spend some money on,” Brennan says. She also has thoughts on choosing a name. “My advice is not to name the company after yourself. You’d have to trademark your own name and, in a dream world, your company is going to take off and do incredibly well and someone is going to buy it. When someone buys it, the value of your company is whatever the brand is called. Most of the time, they are buying the rights to that name.” Brennan cites instances involving British per- fume brand Jo Malone and menswear designer Joseph Abboud as examples of trademarks gone wrong. Both individuals lost the right to use their own names for a business once they sold their companies. The Importance of Trademarks Continued on page 58