Pretty Definitive Copyright Answers re:Patterns

First, I wanted to share my response to some of the great conversations I've had about Copyright.  Personally, I would be very flattered if I published a pattern and somebody actually liked it enough to put time and money into making it and feeling like they in turn could make money from their creation.  That pretty much sums up how I feel about knit/sewing/quilting patterns and copyright.

And now I babble on and on about it because I research stuff - I always just have to know.  I found a bunch and I'll share it here if you're interested.  But you'll be glad to know that after this, I am researched and blog posted-out on the topic!

Just for my own information, I googled copyright-sewing-selling, something like that, and of course came up with a boatload of links.  One of the top few was to Amy Butler's page.  For good or bad, her name does come up a bit when you mention Copyright so I clicked over to see what she had to say.

Besides the standard, she links to a McCall's email conversation that seems to say one may not use their patterns for anything other than personal use.  Amy Butler kindly links to the US Copyright office, so I had to follow.....and I found all kinds of stuff.

One of my pet peeves in general is when people quote sources that are not THE source.  Like when somebody presents a fact to support their argument, only to find that support is also just an opinion without factual backing.  That's how misinformation and misunderstandings seem to become Truth.

So in this little research project I've made for myself, I've only gathered my information directly from the US Copyright and also Patent Office official web sites and publications.  I've added direct links to places I remembered to grab.

"A copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from producing their own machine."

I thought that was pretty interesting, as it seems to be very similar to the concept of a published pattern.  So then I came across a series of PDFs, and this one had another good example as I tried to figure out what the rules really are.

*****
Circular 40 from the United States Copyright Office : Copyright Registration for Works of the Visual Arts

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 may be copyrighted,
but that does not give the artist or photographer the
exclusive right to make automobiles or dresses of the same
design.

[my empahsis]
*****

The back of my McCall's pattern bought last years says in part:  individual home use only....not for commercial...Honestly, I'm not sure what those statements are because they are not a part of Copyright law. 

I found a link to a lawsuit between video game companies - one was mad that the other made something that was used with the first company's product.  Their lawsuit was denied and in part the judgement said: a party who distributes a copyrighted work cannot dictate how that work is to be enjoyed.

*****
Circular 31 from the United States Copyright Office : Ideas, Methods or Systems

Section 102 of the Copyright Act (title 17 of the U.S. Code) clearly expresses
this principle: “In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work.”
Inventions are subject matter for patents, not copyrights.

What Is Protected by Copyright
Copyright protection extends to a description, explanation, or illustration of
an idea or system, assuming that the requirements of copyright law are met.
Copyright in such a case protects the particular literary or pictorial expression
chosen by the author. But it gives the copyright owner no exclusive rights in the
idea, method, or system involved.
Suppose, for example, that an author writes a book explaining a new system
for food processing. The copyright in the book, which comes into effect at the
moment the work is fixed in a tangible form, prevents others from copying or
distributing the text and illustrations describing the author’s system. But it will
not give the author any right to prevent others from adapting the system itself
for commercial [my emphasis] or other purposes or from using any procedures, processes, or
methods described in the book.

*****
I was surprised when I found that one.  Seems pretty clear-cut.

Another similar example - recipes.  There is no copyright violation in using either a mix or published recipe to prepare and sell at a bake sale....in your restaurant...You just can NOT photocopy the page and hand it out to everybody.   The copyright office goes as far as telling people they probably DO NOT want to copyright a recipe with a secret ingrediant, as all copyright documents are public and there is nothing that would prevent others from finding and using their ingredent list and methods.

After reading Circular 40, I clicked around the Patent law area for a bit, as it seemed like if you wanted to control the use of objects people made from the thing you have just published directions for you may actually need a Patent instead of a Copyright. 

I happened across an online chat they had at their web site: 

....Monica 2: Is it possible to patent the design of an article of clothing? I am referring to the sewing pattern, not any graphic pattern on the cloth itself.

Expert 50: Yes, it is possible to obtain a patent for the sewing pattern for an article of clothing as long it is meets the standards of being new, useful and nonobvious.

Didn't bother to look into what all that would entail to be nonobvious - but did see that Patents cost big money and it seems like a waste of time and funds relative to what we're dealing with.  But from the same area of the web I found this interesting answer:

Copyright vs. Patent

Copyright vs. Patent If one develops an unusual book format /structure with the intent to display a specific kind of information (e.g. the structure makes learning celestial navigation easier), does one protect that using copyright (as 3-dimensional art) or as a patent (as a useful item)?
The answer to your question depends on how you want to protect your invention. If you want to protect unauthorized publication of your book, then a copyright may be sufficient, http://www.copyright.gov/ If you want to protect the ornamental features of the product, then a design patent may be the best choice. Lastly, if you want to protect the use or the products utility, then a utility patent would give you the best coverage. For example, if your product is an educational device, then your product may be eligible for a utility patent. Often, more than one type of intellectual property protection (i.e. a combination of copyright, trademarks and/or patents) may yield the best coverage for your product. You should seek legal advice to see which intellectual property protection is most appropriate for your invention.

I often read about people making the claim that there is some kind of licensing that goes along with copyright allowing them to say yes/no to selling a product made from a pattern, and it appears there is not, unless you're talking about music and there's a new, crazy complicated mess! 

I found Licensing is linked with Patents - what is normally claimed for Copyright and sewing patterns is found here with Patents.

Patent:  re Licensing
Infringement of a patent consists of the unauthorized making, using, offering for sale, or selling any patented invention within the United States or U.S. Territories, or importing into the United States of any patented invention during the term of the patent.

The owner of a patent may grant licenses to others. Since the patentee has the right to exclude others from making, using, offering for sale, or selling or importing the invention, no one else may do any of these things without his/her permission.

A patent license agreement is in essence nothing more than a promise by the licensor not to sue the licensee. No particular form of license is required; a license is a contract and may include whatever provisions the parties agree upon, including the payment of royalties, etc.

The drawing up of a license agreement (as well as assignments) is within the field of an attorney at law. Such attorney should be familiar with patent matters as well. A few States have prescribed certain formalities to be observed in connection with the sale of patent rights.

Clicking away, I came across official court summaries by judges in some copyright cases.  Even a couple quilt related ones - but all that I found dealt with somebody copying a quilt or other item exactly and without any connection to a published pattern. And interestingly,  those cases didn't side with plaintiffs much, if at all.

The last point that seems a bit vague and a tad confusing is "derivative works".  Some people claim that sewing an item from a pattern is creating a derivative work and in essence violating copyright law.  But I found that for something to be a derivative work it in itself must be copyrightable. 

While the US Copyright office gives a nice list of derivative work examples, there isn't anything on the list that is equivalent to using a purchased pattern to make and sell stuff.  For now my inference is that it is NOT an infringement or derivative in any way because of their examples in Circulars 40 and 31, a rough similarity to recipes, and finally because I didn't find one instance of case law ruling on use of a pattern.  Not that absolutely none exist, but of ALL the millions of patterns and users over time, certainly there would have been at least ONE I could find if it was in fact a valid infringement.  Because really, people seem to sue over just about anything.

Holy Cow - did I write enough?!  If anybody finds something from the US Copyright office or case law that is different than what I have here, please share. 


As a commenter mentioned, a huge thing about all the brouhaha that crops up about copyright in the craft world may just be the not knowing, misunderstanding, misinformation.  Because if one goes into it knowing that a published pattern = possibility of items made from said pattern could be produced and sold by another, perhaps the author would prefer not to publish and sell the finished objects themselves.  Or, like I said, the author can go into it knowing that if somebody DOES choose to create and sell from their pattern, they can feel the pride of knowing their ideas are loved and benefit from selling to those who are eager to make use of them. 

me!  In my first real life published book - it just arrived today and I can hardly stand it!

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