Tuesday, June 26, 2007

Copyrights, Copywrongs

I've been browsing on various craft sites recently, and one topic keeps coming up over and over again. Copyrights! Copyrights to patterns, that it. There are thousands of free patterns available on the internet for everything from clothes to purses to jewelry to wood-cuts to bookmarks to rugs...

Basically, if you want to make something, try an internet search, and you will find a free pattern. Now suppose you make a few purses or hats or scarves (from those patterns or others) and want to sell them...at a bazaar, a craft fair, on ebay, or merely to gullible enthusiastic friends and family? "No!" say most of the web sites on the topic. You cannot sell these items because you would be violating the pattern designer's copyright. You can only sell if you have permission from the pattern designer. (And lots of pattern designers want to deny that permission.)

All this misinformation bothers me, not because I sell anything, but because plenty of entrepreneurial folks (often stay-at-home moms) are using their skills, time, and talent to make things and supplement the family income by a few dollars. (No one ever got rich selling handicrafts!) On any number of sites, I read accusations that these folks were infringing copyrights and (this is my favorite) "violating international copyright laws." (There are no international copyright laws--only some treaties, which not all countries have signed.)

Why do people assert facts when they know nothing about them? Maybe they just got their information from some of those other websites that tell you you are violating copyright laws by making and selling things you did not personally design. A few of these even virtuously quote from part of the copyright code itself, asserting a copyright holder's exclusive rights "(1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work." They are claiming, of course, that items made from patterns published for the express purpose of explaining how to make the item are "derivative works."

Apparently, they didn't read the whole thing.

It's one of my personal quirks to always, always go to the source for primary information. I read the United States Title 17 Copyright Code, and you can, too. For starters, the above quote is prefaced in this way: "Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to etc., etc...."

Guess what sections 107 to 122 cover? Limitations to exclusive rights, that's what. The section of the code most relevant to pattern designers is 113:

§ 113. Scope of exclusive rights in pictorial, graphic, and sculptural works.

(a) Subject to the provisions of subsections (b) and (c) of this section, the exclusive right to reproduce a copyrighted pictorial, graphic, or sculptural work in copies under section 106, includes the right to reproduce the work in or on any kind of article, whether useful or otherwise.

(b) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title.

(c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.

The most important bits here are (b) and (c). A copyright does not afford the copyright owner any rights with respect to the making or distribution (including selling) or display of the "useful article" portrayed in the copyrighted material--the written pattern itself. Pay close attention to (c). In the case of a work lawfully reproduced (in other words, made from any pattern you have lawfully acquired), a copyright does not include any right to prevent others from displaying pictures of items that are being offered for sale. (In the course of my research, I ran across a quilting website that said you couldn't enter or display a quilt in a country fair without the pattern designer's permission, as the copyrighted design supposedly protected the display of the copyrighted material.)

If you have designed a cute sweater pattern and published it in any way, for charge or for free, your copyright entitles you only to protect the distribution of your pattern, not the sweaters diligent needle-workers have made. Dear pattern designer...if this disturbs you, you are always free to keep your patterns for your personal use and not share or sell them. (Although we hope you don't, because we so appreciate good patterns!) Dear seller of handicrafts, rest confident that you have not joined the ranks of criminals by selling items you have made from any lawfully-acquired patterns. You do not need to seek out that Japanese or Russian or anonymous pattern designer for special permission. You are the reason I did this research and made this post.

A few other points:

Copyright law includes definitions, and a "useful article" is defined in this way: A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”. Toys, clothes, accessories such as jewelry, and so forth, are "useful articles" that do not exist merely to show art work. Original artwork that can be separated and displayed apart from the useful article (such as a picture on a sweater or shirt or tote bag) may be protected by copyright. But not necessarily. Consider this case.

I am not a lawyer or copyright expert. I don't necessarily trust my interpretation of the law (although it seems pretty clear) any more than you should. Therefore, I sent the following question via email to the copyright office of the United States (you can contact them through the website linked above). "Does copyright protection of patterns extend to forbidding items made from the pattern to be sold? If I have a legally acquired pattern of a knitted scarf, a sewn skirt, or a cross-stitch sampler, may I sell the item made from the pattern with my materials, time, and skill? May a pattern designer, offering a pattern for others to make something, determine what is done with the completed item?"

I received an answer on June 19, 2007, from which I quote: "Copyright in a pattern normally pertains to the pattern itself, not to the object that you construct from the pattern."

I'm not asking you to take my word for it, but I suggest those who have a vested interest in the subject get their information from reliable sources, not from craft websites written by those who want to guard or protect their work beyond the point allowed by the actual law. There is an awful lot of confusion and misinformation on this subject floating around the internet. Controlling the distribution of objects based on original ideas or even patterns requires a patent, not a copyright, and those are much harder to acquire.

Keep crafting!



At 7:46 PM , Blogger Birdie said...

Very interesting and informative! Thank you for posting this and for posting the link to the laws themselves.

At 9:28 PM , Blogger MaureenE said...

Very interesting!

As I've always understood copyright laws, they protect someone from claiming that a certain book, article, or pattern is theirs. So if someone took a published pattern and redrew it and put their name on it, they would be infringing copyright. If someone made up whatever the pattern was for and sold the finished product, that's not infringing copyright. Especially if they were to say, "I made this from x pattern put out by y company." That might even generate some business for that company.

Of course, I'm even further from an expert than you!

At 3:14 AM , Blogger molly jean said...

Very intresting!
I have almost quit buying rubber stamps because sometimes I have wanted to sell things that may have a scrap of the disign on it! I did write and get permission to use a stamp from a so called "angel" company. The permission had so many provisions as to be frustatingly complicated! I like the true angel comanies that say you may stamp and sell anything with this image just don't make more rubber stamps from it.

I will not buy any fabric that has any kind of licensed image. Because if you cann't make a pillow from it and sell it you never really own that fabric! Theoretically, if you made a dress for your daughter with Tinkerbell on it you can't legally sell it at a garage sale when she outgrows it!

At 10:49 PM , Blogger DixieRedHead said...

great post! CHEERS!

At 4:44 PM , Blogger Melanie said...

Really interesting and full of solid information. This is a tricky and annoying situation, and you've cleared it up quite nicely!

At 9:59 PM , Blogger iamnichole said...

oh hell yeah! you go girl! what a relief. nobody wants to get arrested for a pattern. i was always scared that someone would recognize a pattern and go crazy on me!! lol! thanks for the information. i'll refer back to it.
great job!


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