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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.

Digital Embroidery

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:

  • Make copies of the digital embroidery software to either sell or give away
  • Post a copy of the digital embroidery software on the internet for others to use
  • Modify the digital embroidery software and sell it as your own
Under Copyright Law you may:
  • Make a copy of the digital embroidery pattern for your personal use
  • Make more than one end product for personal use or for sale from the digital embroidery software

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.
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