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It glitters. It sparkles. It's art Add to ...

In Greek mythology, Pyrrha was the daughter of Epimetheus, the primordial titan, and Pandora, a poisoned gift from the gods. When Zeus put an end to the Golden Age by unleashing a great flood, Pyrrha and her husband, Deucalion, braved the storm together. After crashing through the waves for nine days in a chest, the two emerged as mankind's sole survivors.

Flash forward to present times.

Today, Pyrrha Design Inc. is a small but valiant jewellery company, based in Vancouver and owned by husband-and-wife team Wade Papin and Danielle Wilmore. Five years ago, when a Saskatchewan retailer threatened the couple's livelihood by flooding the market with cheap replicas of their work, they fought back by taking their own Pandora's Box to federal court. Settled last month, it was a watershed copyright lawsuit -- one that could have far-reaching implications for other Canadian artists.

At stake was the question of whether jewellery is a work of art, protected by the Copyright Act, as are painting, music and works of literature, or a "useful article" with a utilitarian function. Although U.S. law is clear -- jewellery is indeed an artistic work and as such is entitled to copyright protection -- the issue had never been tested in Canada.

Because the case was settled out of court, a final conclusion has still not been laid down in law. But a ruling last winter from the Federal Court of Appeal, siding with Pyrrha, strongly suggests that original jewellery designs should be protected by copyright.

"If it was just about us, we might not have pursued it for so long," Papin explains when we sit down for classic cocktails at Nu restaurant in Vancouver, where the trendy designers are well known in fashionable social circles.

"Counterfeiting has become endemic to the jewellery design industry," he continues. "Something needed to be done."

As part of the settlement, Papin and Wilmore received an undisclosed financial sum from Daniel Mysak, president of the Western Canadian accessories retail chain SpareParts, along with a big box of sterling silver pendants, earrings and rings (bearing an uncanny similarity to Pyrrha's fibre optic glass Cat's Eye line) and a promise that he would stop producing the products.

"For the next person who wants to take something like this on, it will be a lot easier," says Papin. "We've made a lot of headway and given other designers a foot to stand on."

When the dispute began five years ago, the self-taught Vancouver design team was in the process of establishing a solid reputation in the United States. Their funky handmade designs -- including a Danish modern-inspired line of silkscreens on burled walnut -- were being sold in such prestigious stores as Terence Conran in Manhattan and Fred Segal in Los Angeles, and in gift shops at the Museum of Contemporary Art in Los Angeles and the Andy Warhol Museum in Pittsburgh.

More recently, their Deucalion line of rugged men's pendants and cuffs appeared in the Hollywood film The Chronicles of Riddick, while their Seals rings and necklaces (cast from 19th-century wax seals) showed up at this year's New York Fashion Week -- on the runway at Araks's lingerie show and in gift bags for front-row VIPs. Britney Spears, Gwen Stefani and Jessica Alba are clients.

In other words, Pyrrha makes top-quality jewellery. So when the firm's exclusive Vancouver retailer called to ask why it had begun selling to a shopping-mall vendor, the designers panicked.

"We jumped in the car and went right over," Wilmore recalls. "We had been copied in small ways before, but when we saw this line we both felt nauseous. He had 10 different designs, stamped with his trademark, with the exact same bevel, chain and colour combinations. It was even displayed in much the same way we would display it."

Mind you, the SpareParts products had been manufactured in Taiwan and were selling for half the price of Pyrrha's line.

"It's always been our mandate to keep our production in Canada," says Papin. "This was such cheap quality, we were outraged. Around the same time, we saw a friend in Yaletown wearing one of 'our' rings, which actually turned out to be [Mysak's] So here we had people going around saying, 'Look at my new piece of Pyrrha' -- as the stone falls out," he says with a bitter laugh.

Their peers advised them there was nothing they could do. "Everyone said, 'The industry thrives on knock-offs,' or 'Imitation is the highest form of flattery.' This wasn't imitation. To us, it was theft," exclaims Wilmore, who still gets flustered when she talks about it.

The couple hired Jennifer Conkie, the high-profile Vancouver lawyer who had just come out of a much-talked-about trial in which she successfully represented musician Sarah McLachlan in a lawsuit brought on by a disgruntled songwriter.

Eventually, after a cease-and-desist letter failed to persuade Mysak to back down, Pyrrha took the case to court. All along, the retailer had maintained that jewellery is a "useful" article, because it is worn on the body, and if more than 50 copies of any one design are made, it is exempt from the Copyright Act and can be counterfeited with impunity.

Pyrrha's lawyer argued that jewellery is no more useful than a painting on a wall or a sculpture adorning a lobby. Unlike a jacket or a pair of eyeglasses, it is not worn for warmth, to improve eyesight or for any function other than aesthetic appearance. On March 23, 2004, Justice Paul Rouleau dismissed the claim. Siding with Mysak, the motions judge explained in a summary judgment that jewellery is not protected by the Copyright Act, but should be dealt with under the Industrial Design Act, because it is a three-dimensional object "not bought purely and simply for its artistic properties, but because of the utility of the article apart from design."

The designers were devastated -- and broke. "We had already spent $30,000 on the case and gotten nowhere," recalls Wilmore.

Their lawyer agreed to launch an appeal, continuing with the case on a contingency basis. "Whether you're famous or not-so-famous, large or not-so-large, I feel strongly about the importance of copyright protection for artists of all genres," Conkie explains. "It's hard enough for artists to make their way in the business world. The Copyright Act should be there to protect them and given full force and effect."

On Dec. 13, 2004, a Federal Court of Appeal agreed, unanimously, to overturn the earlier decision. The ruling judge noted that there was an issue of "genuine interest" to be heard that hadn't been litigated previously.

"A tie pin or cufflinks may be useful types of jewellery that hold clothing together, while other objects such as a brooch or earring may be purely ornamental and not useful at all, valuable only for their own intrinsic merit as works of art," Justice Allen M. Linden said in the decision, which allowed the case to proceed to a full and fair trial.

Although the decision was an important one, observed closely in the legal field and cited in intellectual property newsletters from here to Australia, Pyrrha still wasn't much further ahead. In the following year, the case bogged down with pre-trial applications and disagreements on technicalities.

"We were met with a surprising amount of resistance," says Conkie, who received approximately 10,000 questions for discovery from the defendant's lawyer.

"When you're involved in something like this for five years, you can understand why some people opt for the baseball-bat route," Papin jokes. "They were trying to drown us in paper. We really wanted this case to be heard, but when [Mysak]finally agreed to settle and stop making the product, which is what we were after all along, we had to accept it and move on with our lives."

Although the case sends a strong message to would-be counterfeiters, the issue of whether jewellery is, indeed, art is still left hanging, legally speaking.

"In all truth, it would have been valuable to complete the case and have the court say clearly that jewellery is copyright-protected and counterfeiting is a copyright infringement," says Conkie.

Although Papin says he's pretty sure no one will be copying Pyrrha's designs any time soon, he and Wilmore now have to decide what they're going to do with the "big box of offending jewellery" they received as part of the settlement.

With a laugh, Papin says: "We're thinking about pouring it all into clear acrylic and making it into an art piece called Knock-Off."

 

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