Monday, April 15, 2013

Lecount Project

The Design Department of ASFM

I received an interesting email recently from another furniture maker who asked me where I got the designs for my work.  He said that he was an amateur and had made some pieces "in the style" of a current studio artist.  That artist had threatened him with legal action and he had to take down pictures of his work from his website to avoid trouble.

That reminded me of another incident which happened a few years ago.  One of the students who had taken classes from me at ASFM had gone on to produce some amazing work.  His favorite style was Ruhlman, and he made a magnificent sideboard, which was influenced by that great French artist.  This student was impressed with some photos I had taken of myself standing next to my work, and decided to do the same, but dressed in a tuxedo.  He printed up some postcards and was immediately  served with a legal "cease and desist" letter from some attorney in New Jersey.  This student lives in Southern California.  The attorney was representing a well known marquetry artist who has made his living with Ruhlman copies, and, in this letter, claimed to have "trademarked" the image of an artist in a tuxedo standing next to his work.  Wow.

When I searched his website, I found that he preferred jeans and shirts, like all of us guys, and no photo of him in a tuxedo could be seen.  In any event, be careful not to dress too fancy when you get your photo taken.

All of this leads me to try to bring some perspective to the issue of design.  We all know Sam Maloof made an iconic rocking chair.  Honestly, how many hundreds of furniture makers have copied his rocker?  There are several issues to consider.  Sam was a professional, and master of promotion.  Most of the copies are by amateurs, who just aspire to create something "Maloofian."  No one seriously would value a copy of a Maloof rocker as much as the original.

The irate artist in New Jersey who made his living with Ruhlman copies has no reason to be concerned with another artist in California who also was inspired to do the same.  What is that about "imitation is the sincerest form of flattery?"

As to my career, I can say that I have made exactly one original design in my life.  That was the RockeTable,  which I have never sold and have only made the single prototype.  All the other pieces in my portfolio are either exact copies or strongly inspired by "dead" cabinetmakers who lived in other countries centuries ago.  So far, their attorneys have not contacted me, thank goodness.

As to the marquetry designs for the late 17th century clocks, I have two sources to access, which are "public domain."  The first is the excellent three volume set by Pierre Ramond, "Masterpieces of Marquetry," which has dozens of precise drawings of antique furniture.  I have made lots of copies of these designs in a range of proportions of enlargement.  I can select an element, like a flower or leaf, from this stack of drawings and place it in exactly the position I want to create a new design.  The design is new, but the elements are old.  I suspect period designers did the same, as many of the elements have a similar form, from one piece to another.

The second source of design is from the many pieces of period marquetry I have restored and conserved.  I take thermal fax paper and make rubbings of the marquetry, which works really well, and also use tracing paper to copy elements for my archive.  Some of the flowers are simply amazing, and may contain as many as 50 pieces of wood, just for one flower.

So, nothing I do is original except that I sign my work and brand it.  Go ahead and feel free to copy any thing I have made.  Fine with me, as long as you don't sign my name on it.

Toothing The Groundwork

Over the weekend I took a toothing plane and surfaced all the oak material for the clock.  Then I selected some nice yew wood oyster sawn veneers, which I purchased in 1994 from Patrick George, to decorate the sides of the case.  I prepared them, glued them to Kraft paper and cut the joints for them to fit together.

Back of Panel with Mastic

I also took some hot water and diluted the hot protein glue, then added some very fine hand sanded Cuban mahogany wood dust to make a mastic.  I prefer mahogany for the mastic, as it is a fine powder and doesn't swell up in the wet glue, like some woods.  It also has a very nice dark brown color.

Finally, I have all the panels ready to glue down, which I did in the press today.

Panels Ready for Glue

As to the copying of designs, even Chippendale stole from others!


Renewable Community Power said...

As a lawyer I can say that anything which is out of copyright is fair game to copy. Copyright length varies from country to country, but those long dead masters worked so long ago that you may copy to your heart's content.

Something like Maloof's chairs are probably covered by a slightly different designs registration law (again, depends on your country) - if indeed they are registered. Some jurisdictions may prohibit copying without registration; they may also be covered by copyright, which doesn't require registration.

While someone like Maloof probably never minded the flattery of being copied, others certainly will. In short, don't try to commercially reproduce contemporary work without permission or else you will head for trouble! (Even a dead maker's work can still be protected if the work isn't too old; you might find yourself being chased by their estate!)

The legal threat made here sounds vexacious and commercially driven just to reduce percieved "competition". That isn't the way intellectual property laws are (supposed) to operate. Threats like this work because fighting even vaxacious complaints costs time and money, and recipients (like your student) don't want to go through that.

Ironically, lawyers don't write anything from scratch unless they absolutely have to; everyone looks to find a precedent first to copy :)

W. Patrick Edwards said...

I appreciate your legal insight into this issue. Obviously, I am not trained in law, but I have been around the block a few times.

My understanding of this general issue is that the basic question is commercial. If I want to draw copies of a Picasso painting for my own amateur amusement or as a study lesson in art, that should not attract legal attention.

However, if I make efforts to sell them, there is a problem.

So the basic difference is whether the copies are the work of a private individual for his own use, or that of a professional who is creating confusion and competition for the real thing.

The other issue is that of how exact the copy is. What exactly is the copyright, trademark or patent protecting? How much do you need to change it to not infringe on that protection? That issue is more likely going to need to be decided in court.

As an expert witness in court on the subject of authentication of antique furniture, I am more than a little focused on fakes. It is extremely important to the value of authentic objects that the market for fraudulent items is investigated and persecuted.

Often the fraud is not the intention of the maker, but in the secondary market where unscrupulous dealers look the other way so that they can make a fast buck.

My good friend, Mike Dunbar, has made authentic windsor chairs for decades, and always deeply brands his name under the seat. He told me, back in 1976 that he found antique dealers in Maine who would break the seat, across the brand, then install a butterfly patch to repair the break, exactly where the brand used to be. One of them tried to sell Mike his own chair as "authentic" 18th century!

That takes balls.

Renewable Community Power said...

Part 2:

Let me now complicate things a little...

Ramond has photographed and drawn copies of antiques for his books - he can do so freely because the furniture isn't copyright protected. BUT his photographs and drawings attract new copyright in their own right. So he can quite legitimately stop anyone re-printing his books, though of course everyone is free to take their own photos or make drawings from the same furniture.

He could legitimately put in his books that no reproduction of his photos and drawings is allowed at all, or he could partially allow private use only reproductions but not commercial reproductions. I haven't yet fully read my copies of Masterpieces of Marquetry, so I can't say if he says anything specific about reproductions; but I presume the whole idea of the drawings is for people to copy. Hence there appears to be an implied consent to reproduce; which I further assume extends to commercial as well as private reproductions. He wants to see the art expand across the world.(By all means correct me if I'm wrong on this.)

But that doesn't mean you can copy them and sell them in your own book.

Let me leave you a few simple rules:

If something is so old that it's no longer protected, you can copy it for any purpose.

You don't have an automatic right to copy something contemporary, even if it is for home use. If you're copying something contemporary for private use, at least be discreet about it. Hint: you can always email the person ans ask if it's OK to make a copy for home. They probably won't mind.

If you're copying something contemporary for commercial reproduction, don't be surprised if they get mad at you.

Same goes for reproducing things from books and the internet. Usually the author will say what's allowed and what isn't.

W. Patrick Edwards said...

I am glad for your insight and clarification.

I note the copyright for the books is held by the original publisher, Vial, and dated 1994 for the "Masterpieces of Marquetry" volumes with the fold out designs drawn by Pierre.

Although I never explicitly asked Pierre for permission, it was my observation during the years I was in his class at ecole Boulle, that these same designs were used by his students as exercises.

I know that Pierre personally wanted others to appreciate the great art he discovered in antique marquetry surfaces. I assume he went to the trouble to include so many exact designs in his book as one way for that to happen. Why else would he include a number guide to all the wood species, if he didn't expect artists to duplicate these masterpieces?

I also know the publisher and his philosophy over the years was to work closely with the professors at ecole Boulle to publish their books. These books were intended principally to be text books for the students at that school, and the secondary market was enthusiasts who admired French processes and design. They all are in fact working textbooks.

Back to my original point about marquetry during the late 17th century. I have noted a common and almost universal similarity in the individual elements on diverse pieces. It is like they copied each other's designs for flowers and just arranged them in unique ways. Same as I am doing. That's exactly what makes my work look authentic to the period.

The difference is that my casework is not aged and I carefully brand it and date it so there is no confusion as it ages.

Renewable Community Power said...

[This is actually the first part of my reply which precedes what was published above - an IT error caused a delivery failure :( ]

I have to first point out that I have no specific knowledge of American intellectual property law, but intellectual property law internationally tends to follow the same basic ideas. Every jurisdiction has some form of 'fair use' provisions, so there might be some exceptions to my general comments here.

Unfortunately there is generally no distinction between copying for private use compared to commercial use. The test is whether there has been a 'substantial reproduction': this doesn't mean you copy most of it, it means that you've copied something distinctive enough as to identify it as someone else's material. For example, copying just a few bars from a song is a 'substantial reproduction'.

Furniture is a little bit tricky because it's not easy to come up with a style that is sufficiently 'new' and 'distinctive' so as to create new intellectual property rights. But certainly something like Maloof's work easily passes this hurdle.

The reality is though, that many intellectual property owners either never find out or don't care if you copy something for private use. Some will be flattered, some just can't be bothered trying to stop you, and some actually want you to because it raises the profile of them or the craft/profession. So if the Picasso was still protected, the copyright owner probably doesn't care that you make your own drawing because they're happy that you like it so much and hopefully you're adding a bit of beauty to the world. BUT they could stop you if they really wanted to.

Some places are also mean 'cause they stop you drawing or photographing things where any intellectual property rights have expired simply to force you to buy their postcards at the gift shop :(

But yes, as you say, if you're commercially reproducing protected material don't be surprised if you get a threatening letter telling you to stop.

Most people will stop reproducing things or take photos down from websites because they don't want to spend time and money fighting a vexatious claim. But the same also works in reverse - many people make threats without any intention of following up because they too can't afford to, or they know they don't actually have a leg to stand on.

Antique fraud is a bit different - any IP in an antique has long expired, so the maker can reproduce without breaking any law. But if the maker, or some dealer later on, then tries to pass this off as a genuine antique, then this becomes a breach of contract issue or offence of fraud issue; not an intellectual property issue (there isn't any).

The Dunbar story is utterly appalling!