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Mine or yours?

By Jacquie De Almeida

As a jewellery designer, you put a lot of creative thought into coming up with an original design.

You’ve established a brand style and a consumer following, and over the years, invested a considerable amount of money in marketing dollars.

But if you’re working with a CAD service centre, you may not be the sole copyright holder of your design.

When it comes to these collaborations, there is a range as to how much input raises a CAD operator to a level of co-author of a design, says Gary Daniel, an intellectual property lawyer with Blake, Cassels & Graydon LLP in Toronto.

“There’s always the possibility the contributions of a person other than the jewellery designer will be held to be a sufficient contribution that they would be considered a joint author and therefore, a joint owner of copyright,” he explains.

The question is, how much input is sufficient?

On one end of the spectrum, no authorship exists. Here, the CAD operator simply follows the instructions of the jewellery designer. Daniel likens this scenario to a scribe dictating a book to an assistant who writes it out.

In a situation where there is minimal input, the analogy would be one where an assistant catches a typo or moves a comma. “They’re not really providing any creative input,” he explains. “They are just making minor changes. In other words, they are not blindly following the direction of the jewellery designer, but they still don’t rise to the level of an author.”

Things get more complicated from there, as there are no hard and fast rules and it’s not simply a question of percentage of contribution, but rather the substance of it.

“For example, if the jewellery designer says to the CAD operator, ‘You need four prongs to hold the stone and you only have three, so it’s not going to work.’ It’s like building a chair with only two legs. You really need three or four. That may not be a creative contribution because all the person does is add one more prong. But on the other hand, if the CAD operator says, ‘You have these prongs, but if you make them thicker, it would look better.’ That’s more likely to be a type of contribution.”

So what’s a jewellery designer to do? Daniel’s advice is to document in writing what the relationship between the jewellery designer and CAD operator is going to be, and what will be provided upon payment, such as the actual CAD files. For instance, if the arrangement is one of a fee-for-service, the jewellery designer may stipulate in the agreement that the CAD operator assign to them whatever copyright interest they may have upon receipt of payment.

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