Tribute Or Copy - Where To Draw The Line?

[JB Cases]

From Copyright.gov

A “useful article” is an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing; automobile bodies; furniture; machinery, including household appliances; dinnerware; and lighting fixtures. An article that is part of a useful article, such as an ornamental wheel cover on a vehicle, can itself be a useful article.

Copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship. Copyright may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus a useful article can have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware can be protected by copyright, but the design of the chair or the flatware itself cannot, even though it may be aesthetically pleasing.

Some designs of useful articles may qualify for protection under federal patent law. For details, contact the U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450. tel: (800) 786-9199 or (571) 272-1000. web: www.uspto.gov.

Copyright in a work that portrays a useful article extends only to the artistic expression of the author of the pictorial, graphic, or sculptural work. It does not extend to the design of the article that is portrayed. For example, a drawing or photograph of an automobile or a dress design can be copyrighted, but that does not give the artist or photographer the exclusive right to make automobiles or dresses of the same design.

JV

Correct. So what is copyrightable on a pool cue and what differences make a similar looking cue not a violation?

This is murky water and it costs a lot of money to clear it up.

I guarantee you it's an uphill battle to try and claim and enforce copyright on the designs on pool cues.

But if you think it's not go ahead and do it. There is plenty of copying out there. The ACA should be able to bankrupt the copiers if you're right.

 

[KRJ]

Personally, I think the common ground should be "tributes" only for deceased cue makers where the business is no longer making cues.

Thus, it is an honor, and a chance to buy a cool looking cue from a cue maker that you respect, but from a design by a cue maker of yesteryear that you admire.

Would not be a bad idea to even give a "residual" of each cue sold to the deceased cue makers family or donate to their favorit charity.

Yes, I know there are not copyright rules, etc. But it would be nice if the cue making community could put something down in writing regarding it and then abide by it. There does NOT have to be federal laws or regulations enacted if we just did the right thing....the pool community should be able to police it themselves......

And the residual would be optional but a classy thing to do...... Hey, just a thought

 

[Zirroe]

Obviously there are some type of copyright issues, why else did Ernie Gutierrez sue Paul Mottey, because he actually copied him

 

[kvinbrwr]

My objection in that thread was the seller (and builder) banking on Ernie's design and calling that a tribute. A tribute implies (I think) that in some way you are complimenting the originator and I know the originator in this case and I know he does not consider copying his unique designs a compliment.

I thought a prospective buyer should know that so I mentioned it.

I don't know copyright or trademark law, but I do know Ernie guards his brand names and trademarks completely and does copyright what he can and updates them and keeps them in effect. I know he has rights beyond his name and logo, but not what they are specifically (and if they apply to the Rasputin). I would have shown him the cue had the seller not withdrawn it.

Thanks

Kevin

 

[kvinbrwr]

Obviously there are some type of copyright issues, why else did Ernie Gutierrez sue Paul Mottey, because he actually copied him

I was going to mention the 18D Ginacue/Mottey deal. My understanding is that Ernie threatened to sue Paul and Paul promised to stop (not that Ernie actually sued him). What rights Ernie had, copyrights or patents he would have used, I don't know.

Kevin

 

[JB Cases]

Obviously there are some type of copyright issues, why else did Ernie Gutierrez sue Paul Mottey, because he actually copied him

Without knowing the specifics of that dispute people sue other people all the time when they don't actually have the legal upper hand. Sometimes the other side capitulates rather than to fight a lawsuit. Monster Cable is famous for threatening lawsuits against companies it thinks are infringing on it's intellectual property even when the other companies are not in fact doing so.

 

[kvinbrwr]

Personally, I think the common ground should be "tributes" only for deceased cue makers where the business is no longer making cues.

Thus, it is an honor, and a chance to buy a cool looking cue from a cue maker that you respect, but from a design by a cue maker of yesteryear that you admire.

Would not be a bad idea to even give a "residual" of each cue sold to the deceased cue makers family or donate to their favorit charity.

Yes, I know there are not copyright rules, etc. But it would be nice if the cue making community could put something down in writing regarding it and then abide by it. There does NOT have to be federal laws or regulations enacted if we just did the right thing....the pool community should be able to police it themselves......

And the residual would be optional but a classy thing to do...... Hey, just a thought

Like the Zinzola Szam tribute currently being offered for sale. To me, there's a huge difference between contacting the Szam family and asking permission, as they did in this case, or just blatantly copying a guys design. One seems to be showing respect, the other seems like, well, theft. Using the name of the guy you stole the design from to enhance the value of your offering is an insult.

Kevin

 

[kvinbrwr]

Without knowing the specifics of that dispute people sue other people all the time when they don't actually have the legal upper hand. Sometimes the other side capitulates rather than to fight a lawsuit. Monster Cable is famous for threatening lawsuits against companies it thinks are infringing on it's intellectual property even when the other companies are not in fact doing so.

Yeah that's just a business move to stop competition by the big over the small. Works good too.

 

[Jaden]

The only thing copyrightable of Gina's cues would be his logo...

From Copyright.gov

A “useful article” is an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing; automobile bodies; furniture; machinery, including household appliances; dinnerware; and lighting fixtures. An article that is part of a useful article, such as an ornamental wheel cover on a vehicle, can itself be a useful article.

Copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship. Copyright may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus a useful article can have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware can be protected by copyright, but the design of the chair or the flatware itself cannot, even though it may be aesthetically pleasing.

Some designs of useful articles may qualify for protection under federal patent law. For details, contact the U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450. tel: (800) 786-9199 or (571) 272-1000. web: www.uspto.gov.

Copyright in a work that portrays a useful article extends only to the artistic expression of the author of the pictorial, graphic, or sculptural work. It does not extend to the design of the article that is portrayed. For example, a drawing or photograph of an automobile or a dress design can be copyrighted, but that does not give the artist or photographer the exclusive right to make automobiles or dresses of the same design.

JV

If a cue has all of the same woods, styles of designs etc... unless it has his logo, it cannot be protected under copyright law. The cases where copyright infringement most often occur in cues is when patented joints, etc... are used without consent or are copied...

Jaden

 

[JB Cases]

If a cue has all of the same woods, styles of designs etc... unless it has his logo, it cannot be protected under copyright law. The cases where copyright infringement most often occur in cues is when patented joints, etc... are used without consent or are copied...

Jaden

Actually the mechanical part of the cue is only protected by patent if those parts have been patented. Any mechanical connection cannot be protected by copyright.

Copyright only protects expression. Only artistic works not mechanical and useful ones.

Joe is right in that in some cases the ornamentation on an object may be protected under copy right. But typically the decoration on an utilitarian object is not granted copyright protection in the form of being registered.

Anyone can CLAIM copyright though even if their item is not registered. Copyright exists at the moment of creation. Registration only provides a record of it. So if a person wants to claim copyright on their cue designs they can. They can sue anyone who makes cues that look like theirs and they might even win if the court agree with them.

 

[Maniac]

Personally, I think the common ground should be "tributes" only for deceased cue makers where the business is no longer making cues.

Thus, it is an honor, and a chance to buy a cool looking cue from a cue maker that you respect, but from a design by a cue maker of yesteryear that you admire.

Would not be a bad idea to even give a "residual" of each cue sold to the deceased cue makers family or donate to their favorit charity.

Yes, I know there are not copyright rules, etc. But it would be nice if the cue making community could put something down in writing regarding it and then abide by it. There does NOT have to be federal laws or regulations enacted if we just did the right thing....the pool community should be able to police it themselves......

And the residual would be optional but a classy thing to do...... Hey, just a thought

I agree with this post!!!

Maniac

 

[kvinbrwr]

Actually the mechanical part of the cue is only protected by patent if those parts have been patented. Any mechanical connection cannot be protected by copyright.

Copyright only protects expression. Only artistic works not mechanical and useful ones.

Joe is right in that in some cases the ornamentation on an object may be protected under copy right. But typically the decoration on an utilitarian object is not granted copyright protection in the form of being registered.

Anyone can CLAIM copyright though even if their item is not registered. Copyright exists at the moment of creation. Registration only provides a record of it. So if a person wants to claim copyright on their cue designs they can. They can sue anyone who makes cues that look like theirs and they might even win if the court agree with them.

That's very interesting. My guess is that is exactly what Ernie was doing when he threatened to sue Mottey.

Thanks John.

Kevin

 

[JB Cases]

Or should there even be a line?

In the For Sale forum a seller was just BBQ'd for listing a Ginacue lookalike made by Vittiatore. He was flamed so hard that he ended up pulling his listing.

Currently, there is a great looking Gilbert cue made to look like a Southwest. No problems thus far for this seller.

A while back a very well respected seller here on AZ offered a number of "TAD tribute" cues that no one seemed to be offended by. Two of the veneer colors in the classic TAD-like ringwork were flip-flopped, as I was told, "out of respect" for TAD. I liked these so much I bought one. They are clearly marked as being made by Carmeli's Shop.

There are plenty more examples but here are three good ones for the sake of discussion.

What defines whether a particular cue is an acceptable (honorable) tribute vs. an unacceptable (dishonorable) copy?

Looking forward to your thoughts on this.

Best,
Brian kc

There is no acceptable line. Some say it's ok if the maker is dead and out of business, others say it's ok if permission from the original maker is obtained, some say everything is fair game once it's out there.

Morally it would be best if people tried to do their own twist on designs that "inspire" them.

I find it immoral to cash in on the signature designs of another maker as a business model. I think it's ok to explore styles and do tributes as a way of learning.

I did my version of the iconic Fellini Sazmboti case in this way. But mine was similar in look but completely different in execution.

Recently someone showed off two Ron Thomas cases that were exact replicas of Fellini cases, the double interlock and the starburst. No one said a negative word about them being copies or knockoffs. I am certain no one contacted Bob Hemphil to ask him if it was ok.

So morality is fluid on this subject.

I find it highly distasteful for any cue maker to make it a habit of simply taking the designs they want and making dead nuts copies. I understand that these are nice designs and they are attractive. But at the end of the day the knockoff artists are simply using the best cue maker's as their own private design studio.

But I understand the dynamics at play here. I understand that copying is also a very necessary part of life. I understand the economics at play when you have someone who has the ability to make cues but not the ability to design them. I understand the desire of people to own cues that are high end and their willingness to take what they can afford to get that look.

There is no line Brian. And if someone did draw one then someone else would claim they drew it first and invoke their copyright.

 

[Jaden]

actually that's no longer the case...

Actually the mechanical part of the cue is only protected by patent if those parts have been patented. Any mechanical connection cannot be protected by copyright.

Copyright only protects expression. Only artistic works not mechanical and useful ones.

Joe is right in that in some cases the ornamentation on an object may be protected under copy right. But typically the decoration on an utilitarian object is not granted copyright protection in the form of being registered.

Anyone can CLAIM copyright though even if their item is not registered. Copyright exists at the moment of creation. Registration only provides a record of it. So if a person wants to claim copyright on their cue designs they can. They can sue anyone who makes cues that look like theirs and they might even win if the court agree with them.

With the new copyright laws, it is now first to file, not first to create intellectual property that owns the rights to it.

I think it is a ridiculous notion and gives those with the money to file first open license to steal designs and own them with no recourse for the creator...

Jaden

 

[JB Cases]

With the new copyright laws, it is now first to file, not first to create intellectual property that owns the rights to it.

I think it is a ridiculous notion and gives those with the money to file first open license to steal designs and own them with no recourse for the creator...

Jaden

That would be new to me. Can you cite the source on that?

Registering a copyright does not confer ownership to the registrant. The government is not granting ownership to the registrant when a registration is granted. They are only making a notation that the registrant has filed notice of ownership. That ownership can be contested by anyone else at any time.

It' only costs $20 (as far as I know) to register a copyright. Money is not a barrier. It's a simple form that anyone can fill out on their own.

Copyright, Trademark, Patents, and intellectual property in general is one of the largest misunderstood areas of our society that exists.

 

[kvinbrwr]

Personally, I think the common ground should be "tributes" only for deceased cue makers where the business is no longer making cues.

Thus, it is an honor, and a chance to buy a cool looking cue from a cue maker that you respect, but from a design by a cue maker of yesteryear that you admire.

Would not be a bad idea to even give a "residual" of each cue sold to the deceased cue makers family or donate to their favorit charity.

Yes, I know there are not copyright rules, etc. But it would be nice if the cue making community could put something down in writing regarding it and then abide by it. There does NOT have to be federal laws or regulations enacted if we just did the right thing....the pool community should be able to police it themselves......

And the residual would be optional but a classy thing to do...... Hey, just a thought

In California there is a law stating that any Gallery or Auction House that resells (meaning the current owner is NOT the creator) work of a living artist owes the artist a percentage (I think its 5%) of the gross price the piece brings. That's sorta the same thing. Maybe if I buy a Searing and resell it I should have to pay Dennis a percentage.

Thanks

Kevin

 

[bobroberts]

To me a tribute cue is a way for a lesser known CM to sell his cues.
They are copies of great CMs who came up with their own design.
Is there a certain amount of copying going on in the industry. The answer is yes but exact copies should be off limits.

I was surprised that the Viattore cue was an exact copy of a Gina cue, because they made a decent cue for the prices that they were charging.They went out of business a few years ago because the owner himself, was not a CM.

 

[mnb]

What defines whether a particular cue is an acceptable (honorable) tribute vs. an unacceptable (dishonorable) copy?

How people treat it depends on who made the tribute/copy/whatever and who is selling it.

 

[justadub]

How people treat it depends on who made the tribute/copy/whatever and who is selling it.

Sure seems that way. Which is a completely different issue than the one Brian started this thread with. Remember that? You know, is it ok to trash a for sale thread, that didn't appear to be misleading or deceptive....

 

[J.D. Dolan]

Well put, Lou.

Walking through the booths at the DCC that displayed high end cues, one thing that is noticeable to most folks is that certain cue makers have a distinctive style, usually represented in the form of specific designs that, even without seeing the logo, are readily identifiable as the work of a specific cue maker. IOW, guys that have worked hard to develop designs that not only represent their personal vision, but are also distinctive, beautiful, and appealing to cue fans.

My personal opinion is that use of the word "tribute," as used to sell cues, is a thin cover up for what is in fact a pure rip off of another man's hard work. And the word seems to be most frequently applied when the intellectual theft is the most egregious and the seller or maker knows all too well that they are selling pilfered goods. The cue in question is a good example.

I would also like to say that I believe the AZ community as whole should do more to police the Wanted/For Sale forum and let it be known that "tributes" are not acceptable in this community.

Lou Figueroa