Wednesday, October 19, 2011

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

[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 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, 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!



Impera Magna said...

Excellent post! Ya done good with a murky subject matter...

BijouxBaby said...

Thank you so much for doing your research and being diligent. I went to law school and my husband is a patent attorney. It makes me crazy to see people spouting all sorts of nonsense about this issue. Your post was very nicely written.

~Michelle~ said...

HOO DOGGIE! that was quite the post, but as you indicate, definitive. :) And once you framed the copyright vs patent differences, then I really understood (because we actually have quite a few design patents at the furniture company where I work - don't even get me started on what constitutes a jewelry armoire versus other types of jewelry containment devices - and those patents and related descriptions also play a very important role in what sorts of duties can be collected on imported goods).

Jessy said...

Thank you, thank you for writing this! You've done a great job researching and outlining your findings and it is so helpful.
It is good to know that I was on the right track with my research. I guess the only other part to "the copyright issue" that is difficult to discuss is the issue of manners and all that. You mentioned it in one of your previous posts as well as this one, the idea that some people wouldn't in fact find it a high compliment if someone uses their pattern to sell and item but rather would be extremely offended. I understand that as artists it can be upsetting to feel that someone is stepping on your toes as it were, but perhaps more people would relax a bit about all this if they had a better understanding of the legal issues behind it and their rights and responsibilities as a pattern designer.
If only everyone could relax a bit and enjoy the give and take that comes from being a part of an artistic community.
Thanks again for all these posts, they are great!

Kelly said...

I too have a law degree and I appreciate the effort you took to provide accurate information! I could never understand why designers would be upset that others like their patterns enough to make items to sell--I honestly feel that's the whole point! I feel you shouldn't publish a pattern if you don't want people to make it (and potentially sell it!)

Ariane said...

I want to thank you for doing all this research. It was very informative and well written!!!

Stephanie said...

Thanks for sharing this info, something I never really understood. And what book are you in??? Congratulations!!!!

Nichole said...

great research! it does seem that it is pretty clear that legally pattern writers cannot prohibit what people do with the items that they make with their patterns. however, it does seem to be more of a "letter of the law vs. spirit of the law" issue to me.

Julie said...

I too am an information junkie and appreciate all the work it took to compile this information. Thank you.

CitricSugar said...

Thanks for the research!

Marianne Penner said...

Thank you so much for doing all that research and sharing your knowledge.

Anonymous said...

Wow! Thank you for all the research you did on this topic! I know it's going to help a lot of us sewists and probablyl upset a few too, but it sure clears up a lot of questions! Great job!

Dawnmarie's Life said...

Thank you so much for sharing your research. I've always thought it was silly for people to publish a pattern and then get all upset about how the finished item is used. We have similar issues that come up in papercrafting. It's always been interesting to me that two people can come up with the exact same card design at different times without seeing each others work. Sometimes, the one who posted the work first will claim it was copied without credit. Sometimes it is, but others it's not. There's really only so many unique ideas out there.

I do try out of respect to honor the wishes of the pattern makers. But I don't think they understand that not everyone has the same gift for creating a pattern. If I want to have a business selling my quilts but am not good at designing patterns, does that mean they think I shouldn't have a business? I don't think they've ever thought of it that way.

randi--i have to say said...

Great post! Thanks for doing all of the looking up of info!

Also, congrats on the book. So awesome!

Robin said...

Great post! You've dug up a lot of really useful information and present it in a very readable and understandable way. Thanks so much. :)

Shannon said...

Congrats on the book. How exciting. I am very thankful that you are trying to help others figure out copyright info. It is all so silly to expect to control what somebody is going to do with there project after they are done with it even if they used your pattern. The idea behind putting out there is first to make money but then that some one will amke your stuff. What do they want you to do then put it in a closet so no one will want it. Good info thank you!

suz said...

Excellent research and well presented. I work for a law firm and I find that too many people are poorly informed. As for a patent, should a pattern maker want to go that route...well the first thing needed is probably a patent lawyer - they know how to correctly write the patent. Then there is the cost...oh boy!
You did a great job!

Lee said...

THANK YOU! This confirms what I suspected all along, so it is wonderful to have the research to back it up. And as you said, it's pretty definitive. You've done all of us a huge favor here. It's time to end the misinformation!

Bryan Griffith said...


Your article, and the law graduates (practicing lawyers?) who have apparently endorsed via comments, your unsolicited legal advice are leading your readers far astray from the actual law. While the risk of litigation may be low on these cases, the laws of intellectual property are quite different from what you describe, and they vary from state to state.

Unlike your article, I will not offer specific legal advice, you must hire your own attorney for advice based on the facts of your particular business.

However, here are some of the biggest mistakes in your article: 1) Licensing applies to all property rights, including copyright (see iTunes license); 2) Copyright office circulars are not a good source of legal advice, only judges and statutes are "the source" when it comes to the law, and you have quoted neither; 3) just because you have a physical copy of a pattern doesn't mean you acquired the right to use the pattern (see "licensing"); and 4) you have failed to address other types of intellectual property that apply, such as trademarks.

For example, the United States Federal Court for the Northern District of New York has held:

"Plaintiff's clothing pattern designs, on the other hand, fall within this category. The Second Circuit has held that clothes are not protected by the Copyright Act, but "fabric designs . . . are considered writings for purposes of copyright law and are accordingly protectible." Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995) (citations and quotations omitted). Moreover, "the scope of preemption under § 301 is not the same as the scope of copyright protection" and therefore "the former is in fact broader than the latter." Stewart v. World Wrestling Fed'n Entm't, No. 03 CV 2468, 2005 WL 66890, at *3 (S.D.N.Y. Jan. 11, 2005). Accordingly, district courts in this Circuit have also found that "clothing designs, though generally not copyrightable, nevertheless do fall within the subject matter of copyright for preemption purposes." Id. at *3 n.3 (citing Morris v. Buffalo Chips Bootery, Inc., 160 F. Supp. 2d 718, 721 (S.D.N.Y. 2000)); cf. White House/Black Market, Inc., 2010 WL 2985532, at *3-4 (addressing only general scope requirement for claim involving copy of clothing designs). The Court therefore concludes that Plaintiff's clothing designs satisfy the subject matter requirement for complete preemption." QUADRILLE WALLPAPERS AND FABRIC, INC. v. Pucci. And in the Southern District of New York, the court seems to disapprove of misusing a pattern, where it stated, " Harry Lebow and plaintiffs' own employee both were in agreement when they testified that it would be a simple matter for a pattern maker in the trade to reproduce the pattern for a garment merely by buying a sample of the garment, disassembling it, and, allowing for variances, tracing the outline of its component parts." Abraham Zion Corp. v. Lebow, 593 F. Supp. 551.

Furthermore, this area of law is in flux and there is a movement to strengthen the protection offered to clothing, and even the specific design. See H.R. 2511.

I may not be licensed to practice law in your state, and I am not offering legal advice on any particular facts for any particular client. NO ATTORNEY CLIENT RELATIONSHIP has been formed.

I also do not offer any opinion as to the morality of the law or anyone's actions... but like you I am disturbed by the dissemination of bad information.

Best regards.

Angela Nash said...

Wish Bryan Griffith wasn't no-reply. Interested in discussing his points.

I did follow and read the several cases linked from the message, as well as the cases cited WITHIN them.

First, they don't really relate to Copyright and Published patterns in any of the cases. I read through all of them - to the ends.

Even with that, it was interesting that they said exactly what I did about copyright! You can't copyright a useful article, you can't really separate design from a useful article - hence no copyright. And finally, that a pattern was considered non-confidential information and the complaint dismissed. People were certainly mean and unkind and pretty unethical in a few of these cases, but interestingly not illegal. One case even spoke directly to the legality of somebody copying a design that was shown in a photograph - and that was found to be ok! But I think that's super mean.

Really - we all just have to be nice to one another!

Emily Sue said...

Very interesting post. Copyright issues make my brain explode! So complicated and no cut and dry answers seem to be out there. This has always been an issue of great importance to me. It is frustrating that you buy a pattern and the pattern company wants to try to control what to do with the finished product, after you've invested your money, time, blood, sweat & tears into it! Boggles my mind how this could even be considered rational. I have mostly stopped buying Amy Butler patterns because of their knee jerk reactions to copyright "infringement" and fear of home sewers profiting off their designs. I feel that most of these fears are that major manufacturers will rip them off, but please don't punish the little guy! I agree with some of the other commenters - don't put a pattern out there if you're worried about someone trying to sell a finished object from it.

Jen said...

Thank you for posting this! It drives me bananas when people spout nonsense about copyright and quilting (the article in McCall's Quilting was preposterous.) I've been directing people to this site to try and show them how copyright really works but I think I will direct them to this blog post from now on!