Copyright - Know the Law

Patterns and How They Are Affected by Copyright Law

COURTESY OF: tabberone.com

There is no such thing in U.S. Copyright Law concerning the "moral rights" of a copyright holder. Selling an item relinquishes future control over that item unless BOTH parties agree otherwise or unless otherwise specifically stated by law. And, there is no protection under the so-called "common law copyright" for things that are defined as being eligible for federal copyright nor is there "common law copyright" protection for things defined as being ineligible for federal copyright protection

We cannot locate a single federal lawsuit that went to trial where someone has been sued over the use of a pattern. Consider the millions of patterns that have been sold in the last sixity years plus and not one lawsuit? It certainly cannot be because purchasers are strictly following the demands of the pattern manufacturers. Patterns manufacturers do not have the legal right to make many of the demands that they make. Of the major pattern companies, Simplicity, Butterick, McCalls and Vogue, not one has posted on their web sites anything remotely concerning customer limitations on the use of their patterns. Why do you suppose that is? They know they cannot legally restrict the use but they will tell you differently if you email them. The pattern companies are in the business of selling patterns and the great majority of them routinely lie about the use of those patterns.

A pattern can be a template, or set of templates, for manufacturing an item, be it a bird house or a dress. Templates are not copyrightable. A pattern can also be drawings accompanied by instructions for knitting, crocheting or quilting. A method or procedure is not copyrightable. While the drawings themselves could possibly qualify for copyright protection, the actual instructions are not copyrightable. The only other aspect of patterns that could possibly qualify for copyright protection would be the artwork and that would only be if its intrinsic properties allowed it to be separable from the design, which very, very few designs can do. And to be enforced a copyright almost always must be registered.

When someone releases patterns into the stream of commerce they effectively have relinquished control over the uses of that pattern. What we find disturbing is that there are so many people who want to believe that a pattern manufacturer or a fabric manufacturer has the right to tell you what you can and cannot do after you buy their product. It just is not so. Imagine if General Motors tried to tell you where and when to drive a vehicle you purchased from them. Would you listen to them? Of course not! Read what Carolyn V. Peters, Esq. says about patterns and why the pattern copyright does not cover the end product. She makes a few comments with which we take issue here.

A copyright statement as defined in the US Copyright Act is using the symbol © along with the word "copyright" (or abbreviated "Copr."), the first year of publication of the work, and the name of the copyright owner. Nothing else. Any other statement by the copyright owner is irrelevant, extraneous, unenforceable and improper. Yet companies, and individuals, persist in issuing what they call their "copyright statements".

Makers of hair care products frequently place prominent labels on their products stating "Professional Use Only - Not To Be Sold at Retail", or words to that effect. None of the numerous courts that have considered such labels has found them to prevent transfer of title. Nor do label notices create an "implied equitable servitude upon the chattel," such restraints on alienation being disfavored at common law. Clairol, Inc. v. Cody's Cosmetics, Inc., 353 Mass. 385, 393 (1967) (finding labels stating "For Professional Use" to have no legal significance). See, e.g., Tripoli Co. v. Wella Corp., 425 F.2d 932, 941 (3d Cir. 1970) (enforcement of legend on products "marked 'for professional use only' not to be sold retail" would be "a serious restriction on freedom of trade and competition"); Matrix Essentials v. Quality King Distribs., 522 F. Supp. 2d 470, 478-79 (E.D.N.Y. 2007) (finding that the trademark first sale doctrine barred enforcement of "professional use only" restriction); Matrix Essentials v. Cosmetic Gallery, 870 F. Supp. 1237, 1241 (D.N.J. 1994) (refusing to enforce a legend stating "For professional use. Not for retail sale."); Polymer Tech. Corp. v. Mimran, 841 F. Supp. 523, 529-30 (S.D.N.Y. 1994) (no valid claim for unauthorized distribution despite plaintiff's "expression of intent so to restrict sales by labeling its products 'For Professional Use Only.'").

One blog commented, "However, some patterns are sold pursuant to a license–that would be the language you see stamped on, say, Simplicity Patterns that says you can only use it for home sewing, or something to that extent." Folks, a license is not a condition a copyright owner can place upon the sale of an item without the consent of the purchaser. The courts are adamant about this. A license, such the one mentioned above, requires the approval of all parties, as well as many other conditions. Patterns are sold, not licensed. Anyone who says otherwise is badly misinformed.

Some writers attempt to justify the limitations placed upon the sale of items made with patterns by saying the items made are derivatives without saying how they qualify as "derivatives". Under copyright law a fundamental requirement for anything to be considered a derivative is that that item must itself be copyrightable. An apron made using a pattern by Simplicity (for example) cannot be copyrighted because it is a useful item. A quilt that is original in design could qualify for a copyright but once that designer has sold you the pattern to make that quilt that designer has forfeited any right to control what you do with that quilt. It's called the Doctrine of Exhaustion.

We have two quotes here from the 2nd Circuit Court of Appeals (1991 and 1995) relating to clothing and the fact that clothing is not copyrightable. So if clothing is not copyrightable, how can a pattern designer make the claim that their copyright covers the end product, which in most cases is an article of clothing? The claim of making a derivative fails on the same grounds because a derivative must be copyrightable in its own right and clothing is not copyrightable. In addition, read the 1995 letter from the Register of Copyrights explaining why clothing patterns are not copyrightable. Click here for a copy of this letter in PDF format.

 

These patterns are intended to create templates for cutting layers of fabric. This makes the patterns "useful articles" which are not copyrightable under sections 101 (definition of "useful article") and 102 (subject matter of copyright) of the Copyright Act.

 

From Nimmer on Copyright a legal treatise by Professor Nimmer:

 

[3] The Copyrightability of Dress Designs. Statutory copyright protection is largely unavailing for dress designs for several reasons. First, a clothing garment constitutes a ''useful article'' within the statutory definition, in that it is ''an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.'' Copyright in the design of a useful article may be claimed ''only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.'' A fabric design is capable of such separate identification and independent existence, but a dress design typically is not. On the other hand, Poe v. Missing Persons holds that a possibly nonfunctional swimsuit intended for display at an art show might be copyrightable as a work of art. The Ninth Circuit remanded the case for trial whether the bathing suit at issue qualified as a useful item of clothing or as a work of art. Later, the Fifth Circuit aligned itself with ''the Nimmer/Poe test.''

Another, and related impediment to statutory copyright for dress designs is found in a doctrine discussed more extensively in a subsequent section, under which copyright for works of utility will protect only against copying for purposes of explanation, but will not prohibit copying for purposes of use. Thus, copyright in a dress design may protect against the duplication of such design on a paper to be used as an instructional sheet for an unauthorized designer, but it will not protect against the embodying of the design in competitive garments.

 

An in-depth check of copyright records does not reveal any copyrights registered with the U.S. Copyright Office for clothing patterns by Simplicity, McCalls, Butterick, or others. Vogue has some from the 1950s but we seriously doubt they would be upheld in federal court today. Paragon Patterns has no copyrights but on the web site for Paragon Patterns (http://www.paragonpatterns.com/CompanyPolicies.html) they claim all of their patterns are copyrighted. There are a lot of "patterns" copyrights and many are fabric patterns. Why are not these companies registering their clothing patterns? We think because they cannot. We think that is because the copyright office won't accept a registration of copyright on the general patterns for clothing, i.e., those lacking "creativity". Simplicity has copyrights on the pattern envelopes, but not the patterns. Clothing designs, which are aesthetic creations also have the purpose of keeping the body warm and thereby serves a functional purpose. In a copyright context apparel is regarded as a "useful article", and as such receives no protection under copyright law. While the pattern itself isn't copyrightable, and there is no question about that because it is a useful item, the product made from that pattern certainly is not. Useful items, such as clothing, cannot be copyrighted. A unique design embedded within the clothing article might qualify for a copyright but there are conditions attached, and, the design would have to be copyrighted apart from the pattern. The sewing pattern is a set of instructions for making a utilitarian object. While the way those instructions are expressed is copyrightable, the pattern and the finished item are utilitarian and not subject to copyright. In Baker v Selden, 101 US 99 (1879), the Supreme Court specifically addressed the "practical application" of patterns and rejecting the notion that a copyright would cover the dress made from the pattern:

In Drury v. Ewing (1 Bond, 540), ..., a copyright was claimed in a chart of patterns for cutting dresses and basques for ladies, and coats, jackets, &c., for boys. It is obvious that such designs could only be printed and published for information, and not for use in themselves. Their practical use could only be exemplified in cloth on the tailor's board and under his shears; in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms. Surely the exclusive right to this practical use was not reserved to the publisher by his copyright of the chart.

 

Logically, how can a copyright extend to the item made using the pattern even if the pattern could be copyrighted? The actual fabric being used would not be covered by the pattern copyright even if it could be copyrighted. The snaps, zippers, velcro, etc, used to make the item would not be covered by the pattern copyright, even if it could be copyrighted. The pattern copyright, if valid and we don't believe it is, would only cover the physical pattern purchased. The purchaser, that being you, buys the pattern for a fixed amount of money. It is now yours and the manufacturer no longer has any legal control over what you do with the pattern, however, even if the pattern is not copyrightable, you should not
  • Make copies of the pattern to either sell or give away
  • Post a copy of the pattern on the internet for others to use
  • Modify the pattern slightly and sell it as your own creation
The reason we say the above, even though the federal law allows otherwise, you could run afoul of state laws concerning unfair business practices. Could. Not will. Some people are so intense about their patterns they sometines go whacko. Many state claims would be preempted by the copyright laws but that would not stop the weird ones from trying.

Many pattern manufactures falsely claim that you cannot make items to sell from their patterns without their approval or a license. Many pattern manufactures falsely claim that you can make a limited number of items to sell from their patterns without their approval or a license. See what we have to say about Pattern Companies. Like software, patterns are sold, not licensed. In Bobbs-Merril vs Straus, 210 U.S. 339 (1908), the Supreme Court limited the rights of copyright holders to only those allowed by statute.

These claims of expanded limits on the copyrights are false and unsupported by federal law. Beginning with Bobbs-Merril vs Straus, federal courts have regularly rejected attempts by copyright holders to expand their right beyond those allowed by statute. So why do they continue to do it? Because they can. And often, people believe their claims. Mostly because they want to believe the claims. Many, many, crafting chat boards have comments posed where the crafters believe, or want to believe, the pattern manufacturer can limit what someone does with their patterns. Image Disney selling a coloring book and demanding only certain colors can be used for certain characters or they will sue for copyright infringement. The coloring book is yours after you purchase it; color it as you wish..

However, this fact will not stop these companies from improperly interfering with you attempting to make items to sell. Why do they do it? Because they know the average person will not fight back. These companies, supported by their unethical bottom-feeder corporate lawyers, will continue their mis-information campaigns until stopped by a civil suit.

We do get input on these pages. In response to the issue of a pattern being a useful item, from Darlene Cypser, Esq., an attorney in Colorado, with whom we agree on this issue. Read also the article by Jeff Neuburger, Esq., titled Can I copyright my clothing designs?, written July 13, 2007.

 

 

The (dress) design itself is an idea and is thus not copyrightable. (Usually within 24 hours of the Academy Awards knock offs of every single designer dress on that runway will be for sale online and the designers can't do a thing about it. You can't copy and sell the TV footage where you saw the dress but you can copy and sell the dress.) A drawing or a photograph of a dress design is a creative expression of that idea and is copyrightable. It cannot be directly used to construct the item as a pattern can be.

 

 

Another email, was from someone who was in a dialog with a pattern seller. That email, with our comments, click here.

 

 

See also Copyrightability for more information and court cases supporting these arguments. See also "End User Licensing Agreement" ("EULA") for more information and court cases supporting licensing statements.

 

 

See also Implied Licenses, also What Is A License, also Licensed Fabrics and Licensing & Licenses and Quilting.

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Copyright laws and the Quilter

COURTESY OF: Dawn Duperault

There is often a lot of confusion over copyright laws as they apply to quilting and crafting. Here I hope to explain some of the cans and cannots that you need to bear in mind while working with commercial patterns and products.


What is a Copyright?

The Constitution of the United States grants Congress the authority to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries".

Public Law 94-553 allows authors and artists "the exclusive rights to do and to authorize any of the following:

  1. to reproduce the copyrighted work in copies or phonorecords*;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
  5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly."

* The term is "phonorecords" but further sections of the law clarify this to include any method of recording.

A copyright is the right of the author or creator to allow others to perform, display, or transmit in any fashion reproductions of part or all of his or her creative work.

A copyright is intended to protect the livelihood and income of persons who create by preventing others from reproducing that art or image and profiting by it or by denying the original creator income from sales and licences of that product. In other words, if you copy something and sell it, you violate the law. If you copy something and don't sell it, but do deny the author an income from it, you are still in violation.


What can be protected by the Copyright laws?

"Works of authorship include the following categories:
  1. literary works;
  2. musical works, including any accompanying words;
  3. dramatic works, including any accompanying music;
  4. pantomimes and choreographic works;
  5. pictorial, graphic, and sculptural works;
  6. motion pictures and other audiovisual works;
  7. sound recordings; and
  8. architectural works.

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." (17 USC Sec. 102)

In other words, something you create as a "fixed expression" --written, drawn, sung, etc. -- can be protected by copyright. The process or procedure you use to create them can not be copyright protected. (You can, however, file for patent protection)


What is not protected?

According to the US Copyright Office:
  • "Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.
  • "Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.
  • "Works consisting entirely of information that is common property and containing no original authorship. For example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources. "
Your expression must have some creative and original merit. For example, a list of book titles in the guild library does not warrant copyright protection. A list of titles with brief descriptions of each book, a "rating" by a guild member, arranged with drawings in an attractive spiral binding does show effort at original workmanship. That version of your library list has copyright protection. This does not prevent anyone from designing a different booklet with different pictures and descriptions for the same list of books.

But I don't live in the US!

The 1971 Universal Copyright Convention, known as the Berne Convention, was signed by a number of nation states in order to "provide for the adequate and effective protection of the rights of authors and other copyright proprietors" (article I).

They agree that works "published in that State shall enjoy in each other Contracting State the same protection as that other State accords to works of its nationals first published in its own territory." (article II)

The Berne Convention was signed by: Algeria, Argentina, Australia, Brazil, France, Germany, India, Italy, Japan, Mexico, Senegal, Spain, Switzerland, United Kingdom, United States of America, and Yugoslavia. Further agreements were signed between the US and nearly every other nation on earth.

The full text of the Berne Convention, including additional copyright treaties and conventions.


When you can copy

Making a copy is part of the "intended use": you buy a quilt pattern which consists of a typed booklet and templates. It is expected that you will trace the templates and reproduce the quilt design in fabric.

To quote a new book in a review you write for your guild newsletter: you can quote parts of a book or pattern (including pictures) that are only a small section of the whole, for purposes of a review, research article, news story, etc.

When you want to have a copy to take to class while the good one stays home: you can copy the relevant pages from your quilting book to take to class so you don't loose the book you purchased.

Replacing lost or damaged items: your cat gets into the sewing room while you're at work and shreds the tissue for the paper piecing blocks you're working on. It's okay to copy the missing portions of the pattern from the copy your friend has.

When the author includes permission: you have my permission to copy this article for your guild newsletters or class handouts. You must always include the author's name and copyright notice along with anything you reprint.

You are teaching and want to illustrate an example: several pages in Judy Quilter's newest book are laid out to show the steps very clearly. You want to demonstrate this to your graphic design class so you copy two or three pages and make overhead slides.

You write a parody: for fun you take a popular rock song and change the lyrics to reflect your love of fabric and sewing. You write new words in place of the original ones but sing it to the same tune at your quilt guild meeting.

The copies will only be used for your personal reference: at the Houston Quilt Festival you take photographs of all the quilts you like, and keep them at home to refer to for ideas in making your own quilts.

The copy is "incidental": at a show you photograph the members of your quilting guild for the newsletter. Parts of several quilts can be seen in the background.

The work was created by the United States Government: your guild receives a federal grant to design a quilt to hang in the White House. The quilt is considered part of the Public Domain and may be reproduced by anyone.


When you cannot copy

When your copying is intended to substitute for purchasing the item: your friend has a new pattern booklet you like. You figure if you photocopy it you can save yourself $6. This denies the author the income from your lost purchase.

When the work is not your own: your guild wants to copy favorite patterns from published quilting books and hand them out to the new members. The guild can distribute patterns it designs and writes, but not instructions written by someone else.

The copies deny the copyright holder due income and profit: for a fundraiser you decide to copy a popular wallhanging pattern and sell it in a different package. You change the colors used and give it a new name. This is also known as stealing.

The item is meant to be "consumable": it's a set of tissue patterns you sew on and tear off. Copying additional sets denies the author income from unsold patterns.

The pattern does not have a copyright notice on it: it's still protected by the law. The notice is recommended as a method of enforcing copyright, but not required.

The book was printed in a foreign country: the United States respects the rights of authors in other countries, and grants them protections. Other countries are expected to grant American authors the same privileges.

When the item is out of print: the author or publishing company still holds the rights to reproduce that material. Just because you can't find a copy in a store does not mean you are free to copy the one the library has.

The copies are being made for a non-profit organisation: all organisations are expected to seek permission to copy. Further, the law recognizes that "many 'non-profit' organizations are highly subsidized and capable of paying royalties". (17 USC Sec. 106)

You found the picture on the internet: electronic images on diskettes or web pages are considered a form of publishing and are protected by the law.

It is specifically prohibited by the copyright holder: a sign saying "No Photographs" is posted at the entrance to the quilt show vendor's booth, preventing you from taking pictures of the displayed quilting samples.


Full text of the US copyright laws.