Tabberone is pronounced tab ber won
|Embroidery Designs and |
how they are affected by copyright law
Last Updated February 22, 2012
|When someone releases patterns into the stream of commerce they effectively have relinquished control over the uses of that pattern regardless of the format of that design. Embroidery designers want to control the use of their designs as much as the manufactures of regular fabric patterns. They do this to create a larger market for their product. They do this in direct conflict with federal laws. And we are dealing with two types of embroidery patterns here: the hand-stitch and digital.|
Hand-Stitch Embroidery Patterns
While the embroidery pattern itself may be copyrighted, the product made from that pattern is not affected by the copyright as far as restrictions on use and/or sale are concerned. When you purchase an embroidery pattern with stamped material, such as counted cross-stitch, you have purchased the material and ir is yours to use as you wish. You cannot duplicate the stamped material and you cannot copy the instructions and sell them or give them away. Otherwise, it is yours.
Who in their right mind is going to spend thousands of dollars on a digital embroidery machine and software that says you cannot give away or cannot sell what you embroider? The main hurdle when dealing with computerized designs is the prescence of a click-through agreement. These typically appear when loading the software or when the machine boots. The click-through agreement requires the user to agrre to the terms of the EULA before proceeding. Clicking "I agree" binds the user to the terms of the EULA. READ THOSE TERMS IF YOU WANT TO USE THE IMAGES FOR SELLING ARTICLES. They are legally binding. Once you consent to them, they determine what you can and cannot do with the designs.
Digital embroidery manufacturers have a double whammy when trying to comply with copyright law. Not only do they need to protect the final design but they need to copyright the computer program that makes the final design. The embroidery pattern is a set of instructions to a computer for making a utilitarian object. While the way those computer instructions are expressed is copyrightable, the finished item is utilitarian and not subject to copyright. And one federal court has ruled that embroidery software is not copyrightable because it is not software but rather instructions to a machine, not a computer. .
Logically, how can a copyright extend to the item made using the digital embroidery pattern? The digital embroidery copyright only covers the embroidery software not the end product. To be guilty of copyright infringement one would have to copy the software and sell it or give it away. The purchaser, that being you, buys the digital embroidery 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 except that under Copyright Law you may not:
Many digital embroidery pattern manufactures falsely claim that you cannot make items to sell from their patterns without their approval or a license. Like other software, digital embroidery software are sold, not licensed. The 8th Circuit in 2006 ruled that embroidery software was not really software, which is interactive, but actually mere "instructions" to a sewing machine saying that Action Tapes' memory cards contain only data, not computer programs, and are not covered by federal software laws. 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.
Of course, this depends upon whether or not you agreed to their terms before purchasing the embroidery CDs. Or, upon loading the software and using it. And usually this comes in the form of a click-through agreement. Federal courts have generally upheld the validity of click-through agreements.
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 boards have comments posed where the crafters believe, or want to believe, the digital embroidery software manufacturer can limit what someone does with their software. 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.
|See also Implied Licenses, also What Is A License, also Licensing & Licenses also End User Licensing Agreements (EULAs), see also Copyrightability and also Quilting.|
Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions
Initial Interest Confusion |
Likelihood Of Confusion |
Material Difference Standard
Parallel Imports | Post-sale Confusion | Puffery | Secondary Meaning | Subsequent Confusion | Trademark Abuse
Unauthorized Use | Unfair Competition | What is a Trademark?
Angel Policies |
Contributory Infringement |
Copyright Extortion |
Copyright Misuse Doctrine
Derivative | The Digital Millennium Copyright Act | EULA | Fair Use | First Sale Doctrine | Product Description
Registration | Registration Denied | What is a Copyright? | What is not Copyrightable?
Embroidery Designs |
FAQs & Whines |
Image and Text Theft |
Licensed Fabric |
Licensing & Licenses |
Patterns Index | Profit | Quilting | Selvage | Stanford School of Law Case Outline
Tabberone Disclaimer | Trademark Extortion | Urban Myths | What To Do If You Are Veroed
Federal Court Cases |
Alphabetically | by Federal Circuit | by Subject | by Court Quotations
Federal Statutes |
Copyright Act 17 U.S.C. 5 | Digital Millenium Copyright Act 17 U.S.C. 12 | Lanham Act 15 U.S.C. 22
VeRO (Verified Right's Owner Program)|
VeRO Commandments | VeRO-Verified Rights Owners Program | Counter Notice Letter
Counter Notice (pre-2003) | Counter Notice present | On-Line Survey from 2004 | Articles about VeRO | What To Do If You Are Veroed
|Original material by Karen Dudnikov & Michael Meadors is © 1999-2019|