Friday, February 11, 2011

When Does a Customer Turn Designer?

[image via OAC]

I want to tread carefully here, because it is not my intent to offend independent artisans, whose work I support wholeheartedly. But this issue is on my mind from time to time, and a couple of days ago I had an email exchange with a reader that brought it back into focus. Here is the gist of the story - and I don't think it's important who the players are, because the situation is generalizable:
Clyde the Cyclist approaches Alistair the Artisan, inquiring about getting a custom Bicycle Accessory made. Clyde has a very particular idea of what this accessory should be like. Alistair the Artisan says "Gee, I've never made one of those before, but sure, I'll give it a try." And he does. The Accessory comes out great, and when Clyde the Cyclist goes on a group ride, 200 of his riding buddies see it. "Hey, where did you get that neat Accessory?" Clyde the Cyclist tells them, and the cycling buddies contact Alistair the Artisan asking for the same thing. Several months later, Alistair the Artisan has a website where the Accessory is featured prominently and given a catchy name. He shoots a friendly email to Clyde. "Thanks man! That Accessory is my best seller!" Clyde the Cyclist feels taken advantage of and emails me to ask what I think.
Well, I think it's a tough one. On the one hand, if a product really is based on a customer's distinct design, an argument can be made that the "moral" thing to do, would be for the artisan to ask the customer's permission to use it, and to offer some compensation for the idea. On the other hand, if the customer made no stipulations to protect their design, it can be said that the fault is with them.

While this has not happened to me in the bicycle industry, I experienced a similar incident in a different setting a few years back and have since been more careful. If I think of an idea or design as "mine," then I'll approach the artisan presenting it in that manner from the start: "I have an idea for a product. Would you like to collaborate?" This establishes the relationship as a partnership, and fosters an acknowledgement of the fact that design input has real value. But unless that approach is taken from the beginning, it is bound to be difficult to backtrack and reframe a relationship that started out as customer-artisan, into one of designer-manufacturer.

To be clear, I by no means wish to imply that anyone ordering a bespoke item is a de facto "designer." It is only natural that the customer will give a set of requirements to the artisan as part of a custom order, after which there will be an exchange of feedback. For example, should "make it kind of like this one, only in red velvet and with larger buttons" be considered design input or just standard customer feedback? I think the latter. But if the customer has a concrete and clearly expressed idea of the item beforehand, and if the idea differs substantially from the other products made by the artisan, then both parties may want to consider the intellectual property implications of that - before proceeding with the order.

67 comments:

  1. The "collabo" is bullshit.

    If product designs belong to anyone, it sure as hell isn't the "idea person". Execution is everything.

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  2. Fred - So, the actors in a film or play own the rights to the play, and the factory workers who put together BMWs own the rights to the cars?

    If what you say were true, then all manufacturers who have an equivalent level of technical skill would be equally successful. But innovation happens at the design level, not at the level of execution. A talented artisan will have both aspects covered.

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  3. Exactly. That is why there is such a thing as intellectual property rights.

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  4. Anon & others - Any idea how intellectual property law would apply to the "Clyde the Cyclist" scenario? I suspect it would not be on Clyde's side, but I could be wrong.

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  5. I think unless specifically addressed the artisan's design is his/hers. If the cyclist says he designed it, where are his drawings/blueprints and why did he not address the issue Before the artist started selling?
    Not long ago I asked an artist about designing and making a chain guard that looked like a comet. He agreed and said he would send me drawings. Something happened and the drawings never arrived. I went on to other crazy ideas. But, I had no illusion that if things had worked out, the design and the ability to sell others would be up to the artist involved. Had I come up with a specific design with blueprints and had I gotten an agreement, in writing, beforehand that this was MY design, then the artist would not have the choice of making and selling others.
    This just my opinion. I am not a lawyer and, of course, could be wrong regarding the legalities involved. But, that's where I am.

    Off topic. Here are some great bicycle deals :

    http://chasingmailboxes.wordpress.com/2011/02/10/velocity-bicycle-coop-schwinn-paramount-or-rivendell-custom-anyone/

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  6. I should say "interesting" bicycle deals. Anyone interested should, of course, ask the appropriate questions regarding history of the bicycle and check out the bikes themselves.

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  7. Jim - In the specific case I described, "Clyde the Cyclist" did have drawings. However, I do not feel that drawings or blueprints are always necessary. Depending on the product, some designs can be described using photos and specs. But I do agree with you that the issue needs to be addressed before, and not after the fact.

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  8. I believe your scenario is too vague to speculate legal ramifications. Is this accessory absolutely novel or simply an innovation? And to what end was the execution of the design crucial to it's very existence and usefulness? I always thought it would be cool to have a thin, flat television but I cannot take credit for the technological innovations that led to the current crop of LCD and plasma televisions. And your BMW analogy is flawed. The assembly line is actually also a result of design, not necessarily the place for it (innovations on the line generally had to do with line efficiency and that was not encouraged so much). The innovations in a car are usually not meted out during execution but rather during conception.
    But if Clyde said to Alistair, "can you take some material and fashion it in this particular way for me? And since this area is your expertise, please advise me on the appropriateness of the spec'd material." then he should seek a patent lawyer immediately.

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  9. I can't speak to the legality of the issue, and I'm not even sure where I would stand on the moral side of the issue. However, I do think that "Clyde" may have skipped a step here. Before feeling like he's been completely taken advantage, I think he should reach out to "Alistair" and indicate that he feels he played a greater role in this process than that for which he is getting credit.
    Perhaps he says something to the effect of "Alistair, I'm happy that our design has been such a hit. I worked on the concept for sometime before presenting it to you, and I think your execution was great. However, while I'm heartened by its success, I have to say I'm kind of surprised this is the first I'm hearing of it. I feel that I played an integral part in its development, and, as such, deserve some credit for its current status. I'm certainly open to your thoughts about it, and would appreciate hearing your feelings on the subject."
    While the above is a hard email to send (and is certainly not perfectly worded), at least it starts a conversation on the topic, and gives Alistair a chance to respond. For all we know, he will be relieved that the subject was broached, and felt his email was an invitation to do so. Likewise, I would venture to guess that Alistair is as vague as this issue as we are.
    Finally, by sending this email, Clyde can feel that he's fully just in whatever action he takes next, if it becomes necessary, rather than lumping an accusation right off the bat.

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  10. Matt - Yeah, I wish I could make it more specific, but then it might become less anonymous. Plus, I wasn't there myself, and am retelling a scenario I can't verify from the artisan's POV. But, for what it's worth, this is not the first story I hear of this nature when it comes to custom artisans in the bicycle industry, so I thought it's an interesting question in a more general sense.

    Anon - I think that's the best course of action as well. But people tend to avoid confrontation and it's a difficult email to send. Once you send something so direct, it's "on". I'd venture to say that some would feel more comfortable going to a lawyer first, regardless of whether that's a good way to proceed or not.

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  11. In this instance, isn't Clyde able to also make the thing? He could contact another artisan and begin again with the idea as his property.
    If Alistair objects, he will have to sue, and he may lose.

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  12. I don't think this is an unusual problem. In the early days of the web, there incidents where the web designer would claim to own the design of client's site. Today, ownership is handled in the contract for the work.
    Years ago I took a product design class and though it focused more on designing, we were encouraged to keep a dated notebook of ideas so we had some evidence of when we came up with our ideas.
    And the big question for Clyde and Alistair is how much input Alistair had in the design to execute it.

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  13. I believe under US patent law, you must produce a proto-type to apply for a patent. If Clyde was unable to do so himself and wanted to protect his idea, he should have specifically contracted with Alistair or another artisan and reserved his intellectual property rights in the contract. In your scenario, it seems like Clyde only wanted the thing designed for personal use and his resentment came after Alistair did the work to produce more and enjoyed success. It would be nice for him to acknowledge Clyde's idea, but legally, he would not owe him profits or royalties.

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  14. If memory serves, intellectual property rules protect design but not style. Telling the two apart can be tricky. Runway designers are routinely ripped off, a legal practice so long as the copy isn't presented under the brand name of the original. User interfaces in the computer industry are also copied, and often successfully despite lawsuits.

    Clyde isn't going to get far under law without showing some form of contract with Alistair. And even then, it will be nearly impossible to protect his rights. If you've ever bought up a designer logo handbag from a street vendor, you've probably participated in the large, profitable, and illegal knockoff market, one that legitimate design houses have been at a loss to stop. Clyde's best option might be to contract with a large production house and undercut Alistair's price.

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  15. ^ The thing that makes runway rip-offs possible as far as fashion design goes, is that the copies are quite different structurally. The tailoring, the stitching, the fabric - it is effectively not the same design, but as you said, a similar style.

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  16. I don't actually know who "owns" the design here, if it were built to strict specifications I would suspect it is Clyde. I think intellectual property should have been investigated and firmly determined before wide spread production began. I would bet half a dollar that Alistair didn't seek legal counsel before he started production anymore than Clyde did before approaching Alistair.

    And the lawyers get richer.

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  17. In a certain way, this is the samething that happens when others lift photos from your blog, display them, and dont' even have the courtesy to acknowledge where they got them from. And no, doing a copyright doesn't prevent it from happening. sorry, this may have digressed the subject somewhat.

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  18. check out the rack my "artisan" metal worker friend made for me http://trimountiron.blogspot.com/

    i came up with the idea that i wanted a front rack to meet the exact specs of a Wald 137 basket and we "collaborated" on the design. i wish he could sell hundreds of these,being an artisan is hard work and i support people who undertake creative endeavors..

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  19. Yikes. I think if Clyde had communicate his intention from the outset things would have gone better for him.

    FWIW, I sometimes have clothes and accessories made by designers and sometimes by seamstresses with my own designs and sometimes I make stuff myself from other people's patterns. The only time I really feel like I have "designed" something is in the case where a tailor executes something that I've drawn and really acts only as an instrument. When you contract with someone with a clear design vision, it's hard to imagine a case wherein that person wouldn't want some ownership over the design. I think if you want someone to be only an instrument, that's something to say immediately and clearly.

    It seems like Clyde could have mistaken someone who's a designer/fabricator for someone who is only a fabricator. The gray areas around these issues are of course influenced by the unstable and variable ways in which we value such people in our culture.

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  20. Interesting topic. I can't help but think of the many professional artists (those who paint, draw, do prints, sculpture, etc) who have an idea about a piece, and then hire assistants to actually execute the work. Many times the artist minimally, if at all, touches the piece, but because of his/her name, they are termed the creator/artist. It's a bit different than this case because the individual with the idea is getting the credit, but it's kind of an opposite view in that the person with the idea isn't doing any of the work, but also gets the accolades for "making" it. In some sense, it is the idea that is most important, but it can be difficult to swallow the fact that it's a genuine fill-in-the-blank-famous-artist's-name piece of work when they haven't touched it. I also think about the fact that I have designed (completely drawn in some cases) several of my own tattoos. While they were entirely my idea, I am unable to physically tattoo them on myself because of lack of skill in the particular medium, lack of tools, and so on. Does that make me the artist? I'm not sure. While I might have drawn out the idea, it's going to change in the artist's hand. I think there has to be a mutual understanding up front though if there's a concern. Unfortunately, for the Clyde/Alistair situation, I think it's too late to turn back the clock. I think it's one of those lessons to be learned and know that in the future, you won't make that same mistake again.

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  21. Kyle - thanks for the link. That's a nice looking front rack, and I see that he's in Boston!

    PadyAnn - Yes, the pictures are a topic all on their own : (

    neighbourtease - I think a designer/fabricator can play either role. In the "Clyde" case, the artisan had no intention of making the item himself and wouldn't have made it if it were not for Clyde bringing him the idea, so it's hard for me to see him as a designer in that instance.

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  22. GE - When it comes to fine art, the law is on the side of the artist in a case like the one you described. Especially with "conceptual art," the questions to ask are, "Would this piece exist were it not for the person who conceptualised it?" and "Could the same piece be made with the help of different assistants?" If the answer is no to the former and yes to the latter, then the piece belongs to the artist even if they don't lift a finger to physically put it together.

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  23. In the legal sense, an idea is not a design. Protectable copyrights and patents have to be specific. In the situation you describe (as far as it goes), it is actually the artisan who is doing the design work--figuring out how the idea is going to be phyically constructed to actually work. If Clyde had involved a third person, a designer, and said, make a design for this thing that a builder could work from, the design would be the property of the designer unless there were a work-for-hire agreement.

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  24. my day job is in healthcare software, and specifically in working with clients (hospitals, insurance plans, etc.) who want to take our web platform and customize it for their particular situation. Several times, a client has a request for a piece of functionality that we don't support, and I'll have to confer with our product managers to see if it's something that we'd like to include in the future. If they say yes, we'll build it out and might give the client a price break on the billing hours for design and initial testing. They'll have a fair bit of input into the original design, but it's clear from the outset that this isn't a one-off and we'll intend to sell this functionality to our other customers (who may or may not be competitors with each other) The understanding, in many cases, is that it's something that we would've built out for ourselves eventually, but the client's request was a catalyst to make it a reality sooner rather than later. And the client would not have built it themselves.

    Contrast that with subcontracting or outsourcing work. In cases where I've been part of outsourcing coding projects, we have to be very clear in our documentation that the entire set of design and requirements is our work and solely our work; and that the contractor is just implementing according to the spec. The stuff that is outsourced is usually built around a process or concept that we've patented, so even if the programmer were to turn around and build something that apes our application, we'd have legal recourse for showing intellectual property theft.

    Similarly, I'm in a process of working with a friend who is sewing a custom front/randonneuring bag for me. I took a long look at the Acorns and Ostriches, but I've never liked any of their map holder solutions (which are usually fine for touring, but less optimal for working with brevet cue sheets) The design process has involved a lot of back and forth with me expressing functional requirements ("I need to be able to flip a piece of paper with one hand, have it sit on the bag securely and stay legible and waterproof") and her suggesting technical ways of implementing those things ("plastic resealable pouch with swivelling clip?"). In the end, the design is mostly hers even if the impetus might be mine, and if she wants to go along and resell it to other folks, I'm just happy to see that idea proliferate.

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  25. Yeah, I do think that it was, at the very very least, bad manners on the part of the person who made the item not to credit the person who brought him the idea. I'm sad for Clyde and sympathetic but also feel it is his fault for not controlling the process if he felt invested. Unfortunately, these things often happen in an organic way and you gain attachments to the item as the process goes on. It doesn't always feel like you need to say something at the beginning and it can feel rude to, but it's worth it to get over that.

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  26. Moopheus - Interesting. I guess I don't see such a concrete distinction between the idea person and the designer, especially since not everyone uses blueprints and technical drawings in their process. When I knit a garment, no matter how complicated, I don't produce technical drawings. And where would you place someone like Grant Petersen of Rivendell?

    As I write this, I am working on a collaborative project with a costume designer. We will be making a garment together, and the garment was my idea. The technical design will be shared - with both of us making drawings, thinking up dimensions, etc., until we finalise a model we both agree on. And she will be the one sewing it, because she is far better at actual sewing than I am. I think that product development works best when parties work as a team, with roles over-lapping, without worrying too much who is responsible exactly for what. But for that you need trust, and an agreement regarding compensation in advance.

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  27. Moopheus is correct. In order to obtain a utility patent and all the protection they bestow, you need to specify how the design works. You do not necessarily need to produce a final prototype, but you would need to have concrete design execution and specific drawings that would convince an examiner that the design would work. You can't be an inventor on a patent if you said, "I want it to have a door." You would have to say, "I want it to have a door of X size and shape located exactly Y that performs the function Z."

    Having an idea is great, but ideas are not patentable.

    In order to obtain a design patent (one that protects the "ornamental design" or look of something), you still must exactly specify the final look of the object in multiple drawing views.

    If Clyde gave the artisan very specific instruction on how to make the object function, then Clyde may apply for a patent. However, if the artisan made even one tiny specific contribution to the "invention" instead of simply executing from Clyde's instructions, then the artisan MUST be named as an inventor on the patent as well.

    Bottom line is that if Clyde thought he had a great idea then he needed to present the artisan with a Nondisclosure/Noncompete Agreement before giving him the work. That's the only way to protect himself...it's tough to do so retroactively.

    P

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  28. When I have ideas that are adequately unique that I have to seek custom fabrication AND the product would be useful enough that I'm eager to pay for custom fabrication, I protect the idea before going any further.

    Even if I had not done that: If a bunch of people said, "Hey, where can I get one of those?" I'd probably take the hint to protect the idea at that point.

    Referring people to an independent artisan 1) does not give you a right to the artisans profits 2) is a good way to tell the world that the product is not your business.

    That said, the artisan would be nice to give the cyclist a cut of the profit. If I were the artisan, I would probably do so, but I don't see any obligation there.

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  29. P said...
    "Nondisclosure/Noncompete Agreement"


    That makes sense, along with the rest of your comment. I didn't realise that this what was Moopheus meant.

    What about an alternative scenario: Ordering personal items "bespoke" that you wish to be unique to you? My friend had this problem when he ordered a very special ring custom made for his mother. The design had motifs in it that were symbolic and personal for their family, and the jeweler was aware of that. A week after my friend gave the ring to his mother on her 70th birthday, he saw it on the jeweler's website being showcased as an example of their work, complete with pricetag and a quote for turnaround time.

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  30. @Velouria, I do not deny that patent law allows plenty of room for ethical abuses. The scenario you describe above (12:27) is also perfectly legal, but it definitely sucks for the person who wanted the ring.

    Once again, it comes down to specifics. If your friend gave the jeweler a detailed drawing of the design, then your friend owns the design. He could patent it (with a design patent) and then stop the jeweler from making it. He might even be able to argue that the jeweler is violating his copyright by using his drawing to create duplicates of the ring.

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  31. Just for the record, I do think that it is a Very Good Thing that ideas are not easy to protect.

    Imagine that we lived in a world in which you could patent an idea, even if it had to be a feasible one. Think about what that would do to creative freedom. Millions of ideas would be bottled up in the giant patent vault and no one would be able to execute on any of them.

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  32. Just for a moment let's let go of the "what is Clyde ENTITLED to." What does Clyde WANT? In the game of spot the jerk, this isn't an easy one to win.

    If he just wants some credit, Alistair took the time to write a thank you, he would likely be willing to add a thank you for the design credit to the website.

    If he wants money, does he want Alistair to just buy out the design rights? That is still a fairly easy discussion to have. "Hey Alistair, why don't you just buy me out on the design rights for this? You are making good money and should clear up any mess over copyright for future production"

    If he wants royalties, maybe this is the line in the sand where he should try to find someone involved in collaborative law and see if that is even a fair/legal request.

    If he wants production to stop on the accessory, I would bet that would be a harder thing to achieve.

    It doesn't sound like Alistair set out to screw Clyde. It just sounds like no one had really thought about the consequences before they proceeded.

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  33. It sounds like in this case they "designer" didn't design at all. The Artisan did. Ideas are cheap, building is hard. And I'm a professional designer.

    Your advice is correct. Approach the builder with "I have an idea for a product," and the conversation will change dramatically. And so will the outcome.

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  34. In the scenario you described Clyde failed to take ownership of his idea. He had an idea, he tried it out and he was content with a one-off item. There is nothing in that story that conveyed his intentions to steward the idea through concept, development, production and marketing.

    When other people expressed interest Clyde referred them to Allister. He didn't say; I'm glad you like it can I get you one? Clyde said 'Allister made it.'

    If Clyde really wanted to take stewardship over his idea he should gather interest speak to the artisan about production, and take it from there. By the time anyone took delivery on the product there would have been enough collaboration between Clyde and Allister for them to decide who should be rewarded for what contribution.

    Personally I think its discourteous to the artisan to send them all those customers with out a heads up.

    If I were an artisan and I had 200 people come to me and order one item I would be pissed off because I would be spending too much time on customer relations and less on making things.

    In any event I agree with Fred, but I would say it takes a lot of people to bring an idea to market not just an idea person, a development fabricator, or a salesperson. It is all about execution. Clyde didnt execute.

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  35. So I'm wondering how IP law might shape up around design ideas generated from specifically solicited online input, say, for example, from a cycling blog ;-).

    Just for the record, I do think that it is a Very Good Thing that ideas are not easy to protect.

    Imagine that we lived in a world in which you could patent an idea, even if it had to be a feasible one. Think about what that would do to creative freedom. Millions of ideas would be bottled up in the giant patent vault and no one would be able to execute on any of them.


    You are saying this tongue-in-cheek, right?

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  36. ...ideas are not patentable.

    This is false.

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  37. Thanks for keeping the names out of it. I know it's my own fault........ Yes I did have drawings and numbers. But I didn't think it through, didn't consider how I would feel if he started selling this product to others. I appreciate the constructive feedback. I am not greedy and it's good that the guy is making money. But I think my ideas are worth something too and next time I'll take better care of them.

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  38. Clyde the cyclist directed people back to the artisan in the first place... he could've just taken orders from his group and gone back to the artisan himself with "an order" and established a working relationship then.

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  39. Paddy Bogman
    "Personally I think its discourteous to the artisan to send them all those customers with out a heads up.

    If I were an artisan and I had 200 people come to me and order one item I would be pissed off because I would be spending too much time on customer relations and less on making things."


    I agreed with you up until that one. Don't know where you are and who you know, but most artisans I know are desperate to make ends meet and would welcome a flood of customers - especially if they all want the same item, which after all is easier to make than 20 different items with different specs.

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  40. P - Regardless of whether you meant that to be tongue in cheek, I think the problem is that large, influential companies have disproportionate power to patent pretty much anything and to sue individuals and small companies over pretty much anything. For instance, I am not permitted to sell photographs that either intentionally or accidentally capture products by certain manufacturers - including their logos or any recognisable part of the product. Even if I own the product, and it's a photo of my own possession, I am not permitted to photograph and sell what they claim is the company's image. These companies have the funds to do things like that; they have lawyers working full time for them. But for a "regular person", legal action of almost any kind would be prohibitively expensive.

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  41. I can understand how the artisan needs the business and to profit from it as much as possible. People often think artisans' prices are high but forget how much overhead most of them have. (That is the reason why many framebuilders, for example, don't stay in the business.)

    On the other hand, someone who comes up with an idea deserves at least credit for it. The customer was probably naive about his rights or simply didn't expect that his idea would be as popular with his peers or as profitable for the artisan as it was.

    Also I side with the customer in one sense. I've proposed ideas to colleagues and superiors who dismissed them but later presented them as their own. Those ideas were implemented and my name was never mentioned. I'm sure some of you have had similar experiences and perhaps share my empathy for the customer. However, I am wiser about such things, and I hope others don't have to make the same mistake I or that customer made.

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  42. @somervillain:

    "...ideas are not patentable.

    This is false."

    Legally speaking this is actually true. What I think you may be getting at is that there are plenty of patents for things that were never produced for one reason or another, one common reason being that they're for totally ludicrous or impractical inventions. However, if you look at the text and drawings of any patent, you will find specific claims about how an invention is supposed to work. I do not deny that a lawyer will make the claims as artificially broad as possible to afford maximum protection or that people who aren't really the inventors have been erroneously listed on patents!

    This article explains what I'm talking about very clearly:

    http://www.tenonline.org/art/9010.html

    And no, I'm not being tongue-in-cheek in my previous comment. I truly believe that the ability to own something as abstract as an idea is a bad idea.

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  43. P - As a photographer, it is technically illegal for me to take a family portrait of a client in front of their Luxury Vehicle X and then sell that photo to the client. How would you categorise that?..

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  44. @Velouria 2:05

    I agree with you 100%. The big players have huge advantages over little folks like us. At the heart of patent law is protection for the individual inventor, but companies find ways around that.

    I worked for a consulting design firm where I was often being listed as an inventor on a patent relevant to a project of a very large company. I would have to sign a document saying that I was selling all my rights as inventor for $1. ONE DOLLAR!!!!! It was that or get fired I guess.

    I agree with you that companies preventing an artist from using their imagery for...ART! is an abuse of power. Totally. But that's a trademark issue and I really don't know much about that stuff.

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  45. P: My viewpoint is 180 degrees counter to yours. It is of my opinion that the legal right to protect your ideas is what fosters the creative process and innovation. But this applies more to the inventor, than the artisan. An artisan wants to sell products and crafts that are the output of his creativity. An inventor wants to sell his ideas. If the inventor didn't have a means of protecting his ideas from being stolen, he would have no incentive to conceive ideas (from a business perspective).

    In my line of work, idea patents are prosecuted all the time. If through my research I conceive the idea that disruption of gene X by intervention with drug Y may halt disease Z, through a carefully described pathway, I can patent that idea. Without patenting it, there would be little incentive to prosecute the idea and develop a drug for a disease. Naturally, the idea may never see the light of day, for any one of a million reasons, but not for lack of IP protection.

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  46. P: Were you paid a salary at that consulting design firm? If so, then you were being paid to provide your ideas, not to profit personally from them at the firm's expense.

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  47. Velouria: I think it helps to think of the design and the final product separately. Assuming Cyclist's design was honestly an innovation, I think we can presumptively conclude that he has created rights in that proprietary design even if he lacked the skill to produce the design himself. And, even if a similar design already existed, I think IP law still gives some leeway for creating new rights in substantially innovated designs.

    However, in order to implement Cyclists's design into a tangible thing, he had to enter into an agreement with Artisan who had the skills and technical knowledge to implement it. In the example, there wasn't any paper contract memorialising this, but, as we know, contracts can be either written, oral or implied ("quasi-contract").

    So, seen in this light, I think the issue here ultimately will boil down to whether Cyclist a) created a proprietary design entitled to legal protection and, if so, b) whether he intended the temporary collaboration with Artisan to be a license and not a transfer of rights in that design.

    Unfortunately, to answer these questions, we'd need a lot more information, but hopefully this is somewhat helpful. :)

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  48. P - I think the restriction is mostly for commercial photography and not art, but it still creates an absurd situation where so many things are trademarked that it's practically impossible to take a commercial photo in an outdoor setting without either airbrushing a ton of stuff out or controlling the scene so tightly as to make it impractical. But anyway, I digress!

    somervillain said...
    "So I'm wondering how IP law might shape up around design ideas generated from specifically solicited online input, say, for example, from a cycling blog ;-). "


    I know you're teasing, but I've actually discussed this with a couple of people! The thing is, that just because someone makes a design suggestion, does not mean the manufacturer/designer/blog owner did not already think up the same idea their own. And that's where it helps to keep dated records in the form of journals, sketches, and, better yet, email exchanges.

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  49. @somervillian

    I think our disagreement about whether an idea can be patented or not is purely lexical. It still sounds like you have to make a reasoned and specific argument about how you believe disruption of gene X by intervention with drug Y may halt disease Z. The specifics are the key.

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  50. P: of course, you can't patent ideas based on wild speculation. I did say that one would have to clearly describe the pathway by which disease Z would be halted. To me, it is assumed that the basic rules of patents still hold true: the idea is useful (which is subjective), it's non-obvious (e.g., use of a piece of rubber to stop something from rattling...duh), and it's technically feasible. The last part is what's trickiest to demonstrate when concerning diseases: the concept has to pass scrutiny and be backed up by evidence, either proprietary (in house data) or public domain (literature).

    My earlier comment still stands: an idea can in fact be patented, without a direct demonstration that it will work; adequate due diligence (compelling evidence that the idea will work) can be enough to prosecute a patent on an idea. But yeah, I agree with you that the specifics are key.

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  51. "It is of my opinion that the legal right to protect your ideas is what fosters the creative process and innovation."

    A very interesting book you may be interested in:

    http://www.gridlockeconomy.com/

    Most economists would probably disagree with you. Unless they worked for major corporations. Less-law not more-law is generally considered to be better for innovation and for the economy.

    All that said, Velouria is correct in that it doesn't matter. Only major corporations have the legal power to uphold laws like this anyway. So in the end if the product was amazing a major corporation would would still steal it and said artisan and designer would be left out with no cheap courses of action.

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  52. Clyde felt taken advantage of when Alistair told him how successful the accesory was. Alistair took the initiative to make the accessory & had the tools and skill to do so. Had Clyde wanted to participate, he should have commissioned 100 units, bought & paid for them, and marketed them himself.

    dougP

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  53. somervillain said...
    " It is of my opinion that the legal right to protect your ideas is what fosters the creative process and innovation. "


    I agree. Without that protection, there is no financial motivation to come up with new ideas, concepts and designs.

    Doug - Commissioning a product certainly is one way to go about it. But there is also such a thing as partnership or collaboration.

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  54. Lots of very interesting discussion of the legal issues, about which I know next to nothing. But I wonder about the moral dimension. Personally, I think that if Cyclist had drawings of the final design (or even inspired it in some meaningful way), then Artisan owes him something. It would be hard for me to say exactly what that something is, but I'd say it could range from public acknowledgment to monetary compensation. Of course, I realize that even public acknowledgment of Cyclist's contribution could provide Cyclist with ammunition if he wanted to pursue this legally, but I'm still not sure it wouldn't be the right thing to do. If I were Artisan, I think this would be pricking my conscience. But maybe that's just me.

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  55. "I agree. Without that protection, there is no financial motivation to come up with new ideas, concepts and designs."

    The software serving up your blog is open source (linux). In fact a great deal of innovation in software has happened in open source software. No protection- in fact you could argue it's the opposite of protection.

    The internet is general is a great example of how an open and protection free environment can foster invention and innovation. Ripping off other people's ideas and improving on them is pretty much how innovation happens.

    In my favorite essay by SJ Gould "Darwin's Middle Road," he lays out a pretty good case that Eurekaism doesn't truly exist*. The notion that you had a completely original idea and should somehow be well rewarded for it may not be legitimate.

    Should Shimano never have been able to create a derailleur because campy invented the concept? They copied and improved upon the idea. Wether in manufacturing, or design, or marketing they eventually overtook Campy because they out-innovated them.

    Would Campy have not created the derailleur simply because they might be afraid of duplication? Nope! They knew they would be copied. THey concentrated on making the best, most-innovative derailleur they could. Maybe in part because they were afraid of competition.

    In that way you could start to think that lack of protection could very well lead to more innovation not less.

    Great post! Looks like you really got a few people to think about this from the well thought out comments.

    ----

    * The essay's main hypothesis is that pure inductivism is a myth as well.

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  56. Ouch. I made the dreaded wether, weather, whether typo! I meant whether as a wether is a goat.

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  57. Ryan: one fundamental aspect of the patent rules is that they don't exclude you from drawing inspiration from an existing idea or product. You have the right to patent an improvement on an idea. This is what drives competitors to compete with each other. They take each others' ideas, and improve upon them. I'm sure that back in the day of the first derailleur, there probably was a patent preventing its copy. However, by the time the patent expired, improvements to the concept had been patented, and so the cycle of patent-protected evolution moved forward. Remember that patents do expire. This is critical to the advancement of ideas. The idea is to allow the patent to last long enough to allow the inventor to profit from his patent, but not halt progress.

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  58. Since Clyde's intent in the custom product was only for his personal use and not intended as a prototype to be taken to market, the Artisan would be justified in producing the product for other customers without compensating Clyde. If Artisans had to get a waiver every time they did custom work they would have to quit and have jobs like the rest of us.

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  59. While I think it is ok to make your own version of a product, if you start to market and sell that product purporting it to be your own, that is when legalities arise.

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  60. So many of us that make the sorts of things that we're discussing are craftspeople first and business people second. Sometimes we end up dropping the ball on some of these issues as we climb the learning curve. It's not the way it should be but there you have it.

    As the guy who was approached to make the comet chaingaurd I have to admit that I did'nt follow through on this one. I apologise. I got over 30 inquiries about chaingaurds and none got past the talking stage. Most because the cost ended up too high for the customer, a couple because the bike it was intended for got sold on and various other reasons. Somehow in the midst of all that I didn't realize there was a live one in the group. You don't stay in a low volume, low margin business like this by ignoring a customer.

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  61. The purpose of intellectual property isn't to drive innovation - it exists to make something that isn't tangible property (information) into property. People were creating and innovating long before intellectual property existed in common law.

    Kind of funny that this would come up on a blog dedicated to vintage and/or vintage-style bicycles.

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  62. The funny this, is that when I think about this as a customer, I think the customer has no case - their own fault for not protecting the design beforehand. But when I think about this as an artisan, I feel a personal responsibility to behave differently.

    For example: photography. Let's say I photographed someone's wedding (something I almost never do, but for the sake of argument) and the client did *not* opt for the more expensive package where they have rights to the originals and the copyright of the images. And I have this particularly nice, poignant photo where the grandmother, teary-eyed, is kissing the bride. A famous jewelry company somehow sees this image in my portfolio and asks to buy it for their advertisement campaign, offering me an absurdly cushy sum of money. Legally, I can sell the image to them, since I have the rights to it and not the client. In fact, this is how photographers make real money. But "morally" I would pause and at talk about it to the client. There is a good chance they would say "Oh please, no! That image is so personal! We didn't realise that something like this could happen." In which case I wouldn't sell it and would take the financial loss, despite being legally in the right. One could make the argument that this kind of thing is exactly why I am not financially successful while Alistair the Artisan is. But, oh well.

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  63. But an idea isn't an action. If the subjects were models, and you posed them, then it wouldn't be such an issue.

    I understand how you personalized this issue: I would never use an image of such a personal nature for that purpose (more out of respect for privacy mind you). However, I think the comparison is a little bit of a stretch.

    To me, the comparison would be more along the lines of: your friend tells you, "hey, you should take a picture of that building!" You do so, then sell the picture for some absurd amount of money. Might you feel compelled to share some of the profits with your buddy? Perhaps, but the picture also could have been terribly executed and worthless. I guess it really does depend on how specific the idea was, which gets back to your original point.

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  64. Anon - You are right. But if I change the genre to knitting, I think I would feel the same. I knit hats and skirts, always inventing my own designs rather than using available patterns. Lately people have been ordering them from me, and I've been trading them for bike components. If someone were to, say, order a hat and email me very specific specs for what they want the hat to look like, I would not use that design for other hats. Some internal red flag would prevent me from reusing that design, without at least asking the person who ordered the hat if that would be all right with them.

    But back to photography, the scenario you laid out is kind of similar to how my husband and I work together when we take photos. We both work on composing the scene, we both discuss the settings we should use, we both agree on the lighting, and then one of us trips the shutter. Who "took the picture" - the person who tripped the shutter (the camera is on a tripod, so often composing is independent from that), or the person who did the most work setting up the shot? We think that's impossible to determine, so we almost always attribute the authorship to both of us as a team (i.e. "c.2011 Jane and James Jonson"), regardless of who snapped the picture. As for friends telling me what to photograph, I usually don't listen : )

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  65. The organization I work for has designers, authors, film makers, digital visualization artists, show developers and lawyers constantly working on the issue of intellectual property. Each situation seems to bring up a whole new set of questions and interpretations of the laws and from what I've gathered, its a very complex and ever changing subject especially as the Internet has become such a major piece of the game.

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  66. P: Of course ideas are patentable. What is copyright law but that?

    In light of that, I still don't understand how anyone got away with "appropriation art."

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  67. I won't continue to argue the definition of "idea", but refer anyone curious to the link to the article I posted above; it explains what I'm talking about.

    Also, copyrights and patents are two very different types of IP. Nonetheless, you still can't copyright the idea of a novel. You must actually write the novel to have the copyright to it.

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