Selling, Copyright, etc.

Aaron Beaver

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Missouri
This was posted on another forum but I wanted to see what you guys had to day about it.

What are your thoughts about selling projects you build from magazine plans, website plans, etc? Okay to do it, okay if you just use the idea but not actually have plans even though it looks exactly the same. I know WOOD Mag, allows you to sell 25 of something they provide unless noted otherwise, but can they really do that?
 
Yes, they can. WOOD magazine owns the copyright to the design and can enforce it as such. By purchasing a set of plans, you are granted a limited license to use those plans for a certain purpose. In the case of WOOD's plans, they are granting you license to make up to 25 items based on the plans. But WOOD still retains copyright for the plans and the designs they encompass. WOOD is free to stipulate whatever terms it sees fit.

This is analogous to architectural blueprints for a home. The architect is payed for the design (either by a building contractor, or a prospective homeowner). But the architect retains copyright to the drawings - even if they are based on ideas given by the homeowner or contractor. Why? Because mere ideas are not copyrightable, but those that are fixed in a tangible medium (i.e., blueprints) are copyrightable. So the architect owns the design and grants license to the contractor or homeowner to build a house based on those plans. This has surprised a few homeowners who have paid an architect to design a one-of-a-kind home, only for them to later see several other similar homes being built in the area. If you want to retain control over the design, you need to have the architect agree to an assignment, where the architect assigns rights to the design to you.

Cheers,

Kevin
 
Aaron,
FWIW, while it will be tough for them to really police that copywrite, honestly the typical hobbyist is rarely going to build more than a handful of any item they publish. And even if said hobbyist were to set up an assembly line and crank out a hundred of the item, EXACTLY as they designed it I bet that 100th item would be the last one of that widget he'd ever want to see.

that being said, don't abuse the priveledge.

take it, learn from the plans and design your own similar item, improve upon it!
 
I said it over there.

I will say it over Here.

Kevin, No they can't.

They can copyright the plans. The written word.

I can copyright the plans for my Bars.

But I cannot copyright the bar.

Even if I sell you the plans you are free to go build my style Bar

in every town across this great land. You just can't sell the plans.

Now a night stand is not a unique piece of furniture.

There is one in every hotel motel in the world.

This falls under the public domain.

What they say they can do and what they can do

are two different things.

Again, I am not a intellectual property lawyer.

But I am a artist/builder. Love to read and spend a ton a books.

One series I hold dear to my heart are these.

http://www.nolo.com/resource.cfm/catID/DAE53B68-7BF5-455A-BC9F3D9C9C1F7513/310/276/

Per
 
I am an intellectual property lawyer

Let me give my .02. Bu the way free legal advise is worth what you pay. Per, I hate to disagree with you, but you are not entirely correct. The copyright is NOT just to the plan and only pertains to copying the plans themselves. If that was true scupture would not have copyright protection. In music the words and notes are copyrightable as well as the performance. Thus Michael Jackson owns the Beatles catalog of music, but not their recordings of their songs.

So with woodworking plans, any creation of a peice from plans would be covered by the copyright. If you were making one to use in teaching a class it might be fair use. Otherwise fair use does not come into play.

Having said all that, if you make enough changes to the plansthe project might not infringe the copyright. For example, I can take the basic plot of a book and write my own story that does not infringe the copyright of the original book.

What "enough" is is hard to say. Since Wood seems to give a limited right to reproduce their plans 25 times, I would recommend not going beyond that. It is up to the copyright holder to determine the extent they want to enforce their rights.

The works will fall into the public domain after the life of the auther + 70 years. So if the author of the palns dies today they will enter the public doamin in 2077. (Assuming Congress doesn't change the law again.)

Sorry if this is boring, but you did ask.

P.S. I'd rather be making sawdust than talking about this subject.:D

Doug
 
Ok

Maybe you are not getting what I am saying.

The item must be unique.

If you call it a night stand.

It is not unique.

You can not copyright a table either.

4 legs and a top.

Now as to unique, this is unique, http://www.domusweb.it/domus2k6/source/contents/item.cfm?type=NWS&ID=69600&lingua=_eng

Unless it is original and unique and a nightstand isn't. Or it is built in a way
never, ever done before, Wood mag is gonna be out of luck in court.
And now I am fighting with a copyright lawyer.
Silly me. Tell you what.
You can represent woodmag.
Lets get a Judge.
Per
 
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Sorry,

One more thing.

When I cited public domain,

what I meant was, a table, a night stand, a chair, a bed,

is already a common item in the Public Domain.

Per
 
Al,

Thanks for your support.

Now, wood mag in order to hold you liable,

could file for a design patent. On a night stand.

I kinda think the patent office would thank you

for not wasting their time.

P.
 
Again, I am not a intellectual property lawyer.

But I am a artist/builder. Love to read and spend a ton a books.

One series I hold dear to my heart are these.

http://www.nolo.com/resource.cfm/cat...F7513/310/276/

I've read a few Nolo books. They have big print and small words. They are the "Reader's Digest" of law and are aimed at uneducated people who don't want to delve too deeply into a legal analysis. These books churn out simple answers for people to get nothing more than a rough idea of some legal concept. They are, at best, a blunt instrument. Those books will also include a disclaimer stating something to the effect that they are not intended to replace professional legal advice. Unfortunately, not every reader is astute enough to heed those disclaimers. I run into armchair lawyers all the time. People who say that they read books. Good for them. The crazy homeless guy who lurks outside my office building every morning reads books. I don't take him seriously either. I have a few chuckles, just as I am now. A little knowledge is a dangerous thing...

Per, once you have graduated from a law school and have been admitted to the bar in some jurisdiction, you might be able to offer up a legal opinion worth taking seriously. Reading and "spending a ton a books" (sic) won't help you parse out the legal issues. You really should leave this to the professionals. :D

Here is the distinction that several of you seem to be missing. WOOD magazine is not copyrighting a table. They are copyrighting their particular design for a table. The amount of uniqueness that is needed for something to become copyrightable is very slim. It's a very low threshold. Architects and artists make all kinds of seemingly mundane creations, yet these works are protected.

Someone asked a question on this forum and I offered my professional advice on a topic that happens to be in my legal practice. You may not like the answer I gave, but simply not liking it doesn't legitimize the opposing viewpoint. I am simply restating the law on an issue that is well settled in case law. You can choose to believe whatever you want. You can also believe the emperor is wearing new clothes. Ignorance is bliss.

Cheers,

Kevin
 
Gee Kevin,

Lets not disparage the homeless crackheads outside your office.

I use to be one myself. Matter of fact our very own Homeless nutcase

won against the Morristown library in the supreme court.

Never the less four disparaging paragraphs on my poor legal mind

and character and just one sentence on point.

"They are copyrighting their particular design of a table.

And it says, " Copyright can not be used for utilitarian articles, unless the

aesthetic features are separable and can exist independently."

For that as I said before, I believe you need a design patent.

I am sure your razor legal mind will shred this statement.

As for your other remark about leaving it to the professionals,

When it comes to cutting wood or building furniture, I would never dare

suggest you do the same.

Respectfully

Per
 
One difference, Kevin, between furniture and an artistic expression is the issue Per brings up--that of being utilitarian. Artists have long been protected in their expression of form. Makers of simple wooden objects have not, nor will be.

I respect your opinion. There are some furniture items which have been granted design patents. Darn few. Those are protected to the extent someone wishes to pursue recourse.

A common table is not protected. A plan is. It is nice a magazine gives its permission for one to sell a project made from one of the magazine's plans. But it is unnecessary for them to do so.

I cannot think of a single piece of furniture made in the 25 years I have paid attention to design that I have not seen preexisting versions of either in the main or significant elements.

I think this thread has the potential of crossing a line which shouldn't be crossed. So please keep a thoughtful respect for others as this issue is argued.

Take care, Mike
 
Per said:
Lets not disparage the homeless crackheads outside your office.

I use to be one myself.
Why am I not surprised?


O.K., I'll try to make this as simple as possible. Copyright does not protect creations that are purely functional. That we know. An ordinary four-legged table does not qualify for copyright protection. It doesn't qualify for patent protection either, as these have been in the prior art for centuries.

But the moment you add some element of expression - no matter how minor - you have now created a copyrightable work. The fact that the work remains functional is not an issue. The added creativity pushes the work into the copyright realm. The U.S. Supreme Court has held that there need only be a "creative spark" to make something copyrightable. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

Few people would argue that software is functional. In fact, software is usually patentable. But software is also copyrightable. Why? Because years ago, the U.S. Supreme Court deemed the implementation of software code as "expression." Logically, that sounds ridiculous. And I personally have some problems with that reasoning, as it creates a multi-layer IP protection (patent and copyright) for the same thing. But my objections are immaterial. The only thing that matters is the court's holding on the issue. This is fact. Lotus v. Borland.

Houses and other buildings are considered functional. They are utilitarian in nature. Yet, there is a special section of copyright law devoted to the protection of architectural works. People like Per can try to argue against it, but the fact remains: these works are copyrightable. If you steal someone's blueprints and build the structure, you can be sued for infringement, and you will likely lose.

You can choose to follow people like Per and pretend that the facts don't apply. People like that will try to argue that the earth is flat. Or they will choose to ignore established facts altogether. But the ostrich principle is never a useful legal strategy. The mere fact that Per is admittedly a former crack user calls his credibility into question. Look at the facts.

People, don't be so gullible.

Cheers,

Kevin
 
Kevin

So, I just got a wonderful book on Band Saw Boxes, there are great designs in there.

I looked through the book, nothing about use of the plans mentioned anywhere.

Let's suppose that I'm enamored by three designs, I produce boxes from the design, and I put up a website and start selling them.

Have I done something illegal?

I understand that I can't copy the book and sell the copies.

If the author specifically doesn't place restrictions on the use of plans what is the situation?

Jay
 
I think that I can assist in settling this minor and (so far) semi respectful dispute. I spoke with my Intellectual Property Attorney last night on this very subject. The plan is copyrighted as part of the periodical, book, newspaper etc. Therefore you can not copy the "page with the design" without specific permission from the holder. There is no implied consent when you purchase the media, that is sometimes misconstrued as permission based on fair and reasonable purchase. A design patent on the other hand, does protect just what it says, the design. I have filed 100's of design, technical and process patents in my career and they have specific uses. As the name implies, the design patent protects the overall design (and can be circumvented by minor change and no challenge in court), the technical patent protects the application of "multiple use technologies" in a different and unique way and the process patent affords protection for specific application of technologies to a defined and stated use. I sure hope this helps as we are supposed to be friends and colleagues around here and I would like to keep it civil. Thanks and have a great day.
 
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Jay said:
So, I just got a wonderful book on Band Saw Boxes, there are great designs in there.

I looked through the book, nothing about use of the plans mentioned anywhere.

Let's suppose that I'm enamored by three designs, I produce boxes from the design, and I put up a website and start selling them.

Have I done something illegal?

I understand that I can't copy the book and sell the copies.

If the author specifically doesn't place restrictions on the use of plans what is the situation?


Good question. And legally, it's the same situation. The author has copyright on the book, and if the designs are his, he has copyright on those as well. He has every right to restrict the use of those copyrighted works. In the case of WOOD Magazine's plans, they make a stipulation - no more than 25 of the items. The copyright owner has the riight to choose what others may be allowed to do with his designs.

I've seen some ww books that state something to the effect of "plans for personal or non-commercial use only." That is a licensing limitation that is clearly within their right to make. But since your book is silent on the issue, there is likely an "implied license" that allows you to make some reasonable number of the items. After all, people buy these books with the intention of making some of the things embodied in it. I think you can freely make these projects within reason, as that seems to be the intention of the book.

But on the other hand, if I were to buy a ww book, take some copyrighted design from it, and set up an assembly line to crank out numerous pieces of furniture to sell, I might be infringing. I would be hard-pressed to make an implied license or Fair Use argument in my defense. Of course, the chances of being caught are slim. Someone would have to walk into the showroom or recognize it online and realize that the item was taken from the plans. To answer Jay's question - it might be unlawful, for those reasons. The copyright owner could send a cease-and-desist letter or even file suit.

The point I want to emphasize here is that copyright owners have the legal right to enforce their copyrights. That doesn't mean that they necessarily will. Many creators are quite happy to let others use their works, and may even place those works into the public domain. Others simply don't care. Some are not even aware of their rights. But a few will be acutely aware and will assert their rights. Enforcing a copyright sometimes is more trouble (and cost) than it's worth. But the fact remains: they still have the legal right to do so.

I don't want people to become paranoid about copyrights. Ideas are usually freely exchanged and most of the time, people allow others to "borrow" from them. I am merely stating the facts as they relate to the subject. Copyright is real and people sometimes do enforce their rights. That is the crux of the question originally asked at the start of this thread. My best legal advice: if you're not sure if you are allowed to copy something, get the owner's permission.

Cheers,

Kevin
 
Quote:
"But the moment you add some element of expression - no matter how minor - you have now created a copyrightable work. The fact that the work remains functional is not an issue. The added creativity pushes the work into the copyright realm. The U.S. Supreme Court has held that there need only be a "creative spark" to make something copyrightable."

But surely this element of expression must be unique and original? I think the point Per and Mike were making is that it is very difficult to make a unique piece of furniture that is practically speaking defendable. One can't just carve a newport shell on a contemporary coffee table, go into production, and claim it is a unique piece. Or say a person produces a design from a magazine, then adds a truly unique drawer or door pull, and claims the whole piece is unique? Would it make a difference if the pull was perminently attachted vs screwed on?

I'd guess the debate is coming down to the difference between legal advice and practical advice. Kevin is providing sound legal advice. From a practical point of view though, I think most of us know when a piece is unique enough to warrant caution- like saying to yourself "I wish I'd thought of that!". I'd have no qualms about building and selling 95% of what I've seen in Fine Woodworking mag, as I could find similar pieces in a number of other publications, and feel there is little demonstratable "uniqueness" to them.

John
 
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