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Patterns And How They Are Affected By Copyright Law
or,
Debunking The Lies Told By Pattern Manufacturers

Last Updated February 18, 2014


We are attacked regularly by parties who either have a distinct bias, i.e., pattern designers, and people who do not take the correct approach when attempting to determine the facts about patterns. Consider these major points:
  • Detractors never include in their research that which is not copyrightable. They seek quotes and wording that support their needs and then they stop there. Their point has been made. But copyright law includes wording as to what is not copyrightable, such as clothing and useful items, but those exceptions do not fit the editorial needs of the detractors.

  • In rejecting a copyright claim for dress patterns, a U. S. federal court stated:

The question, therefore, is whether a design for dress goods stamped on paper, or on the goods themselves, is a proper subject for copyright protection. One is aided towards reaching a conclusion by inquiry as to what monopoly right the plaintiff really sought to obtain. It would seem that the aim of the plaintiff was to secure a monopoly right of the manufacture and sale of dress patterns which embodied the designs sought to be copyrighted.

Kemp & Beatley Inc. v Hirsch et al 34 F.2d 291 (ED NY, 1929)

  • If we were wrong, pattern companies and designers would have been able to stop us through the courts long ago. We have never been threatened or served a cease and desist letter. Why do you suppose that is?


Challenge Time
We offer the following challenge. We cannot locate a single federal court case that has gone to trial where the designer of a pattern has successfully sued someone who used that pattern to make and sell items without the permission of the designer. NOT ONE CASE.

Those of you who disagree with what we say, show us your federal court lawsuit that supports your claim. If it is valid we will publish it here and retract what we have said and give you credit.

SHOW US THE PROOF.


Read the Simplicity email from 2009 that attempts to tell people how they can and cannot use a Simplicity pattern. We deconstruct this lie-filled email.

Let us begin by repeating the lies most often told by pattern designers and pattern manufacturers. One fact that escapes most pattern users is that patterns generally are not registered with the US Copyright Office. This means two things to a pattern purchaser. First, that the pattern manufacturer cannot make a copyright infringement claim in federal court if it has not attempted to get a copyright registration. And second, patterns are not generally copyrightable so any claims made by the pattern manufacturer about the purchaser having to follow any restrictions imposed by the pattern manufacturer are not legally enforceable.

Keep in mind that the end product of the pattern does not matter. A pattern is a pattern. Whether the pattern is for clothing, quilting, embroidery or making a birdhouse, it is a pattern. And if the pattern were to have copyright protection, that copyright protection does not cover any articles made from the pattern. This applies to free patterns, purchased patterns or patterns given to you as a gift.

The following false claims are taken directly from various pattern and craft sites.


  • False claim:
    All of our patterns are copyrighted.
    There is a difference between something having copyright protection and actually being copyrighted. The former is automatic while the latter requires the pattern be registered with the US Copyright Office. For some reason pattern designers and manufacturers believe there is a special copyright law that applies only to them. They are wrong. Almost all pattern designers/manufacturers do not register their patterns with the US Copyright Office.
    1. Even major pattern manufacturers like Simplicity and McCalls do not bother to register their patterns with the US Copyright Office. 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 aren't 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., because they do not qualify. Simplicity has copyrights on the pattern envelopes, but not the patterns.
    2. Patterns are not generally copyrightable.
      In Kemp & Beatley v. Hirsch, 34 F. 2d 291 - Dist. Court, ED New York 1929, the court stated:

Moreover, the classification which the Librarian of Congress has promulgated, in accordance with the Copyright Act, reasonably defines the scope of section 5, subdivision (g). The "Rules and Regulations for the Registration of Claims to Copyright" sets forth:
"Rule 12. (g) Works of art and models or designs for works of art. - This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings and sculpture.)
"The protection of productions of the industrial arts utilitarian in purpose and character, even if artistically made or ornamented depends upon action under the patent law; but registration in the Copyright Office has been made to protect artistic drawings notwithstanding they may afterwards be utilized for articles of manufacture.

"Toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or similar articles are examples. The exclusive right to make and sell such articles should not be sought by copyright registration."

[emphasis added]

      Congress incorporated the above rule into copyright law in 1976:

"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 U.S.C. § 102(b)

      A pattern is a procedure, process or method of operation, for making something. The specific instructions for making the item might, might, qualify for copyright registration but that copyright only would cover the written instructions, not the patterns or what was made from the patterns.

      In Adelman v Sonners & Gordon, 112 F.Supp. 187 (SD New York 1934), the lawsuit claimed the defendants infringed plaintiff's copyright of a drawing of a dress. The court stated:

This seems clear if it be kept in mind that it is the drawing which is assumed to be a work of art and not the dress. It follows that plaintiff's copyright gives it the exclusive right to make copies or reprints of the drawing only, and that it gives the copyright owner no monopoly of the article illustrated.

[emphasis added]

    1. Unregistered copyrights lack legal enforceability.
      The Copyright Act. 17 U.S.C. § 411(a) requires that ''no action for copyright infringement my be brought until the work that is the subject of such action has first been registered in the Copyright Office, or at least an attempt to register has been made and refused by the Copyright Office.'' 3 Nimmer §12.08, at 12-132.21. If the copyright registration is denied the party can still go into federal court on a claim of copyright infringement but the heavy burden of proof of copyrightability is one the party claiming copyrightability which no one that we can find has ever overcome.

      If the work is registered after the alleged infringement, statutory damages and legal fees are not available to the claimant.


  • False claim:
    Any finished product made from a copyrighted pattern, step-by-step instructions, chart, or photograph is also covered under copyright law.
    False, false, false. See Adelman v Sonners & Gordon just above. The pattern, not the end product, is the subject of the registered copyright. But again, patterns are not generally copyrightable. And clothing is not copyrightable. Imagine if Simplicity had a registered copyright on the pattern for an apron. Simplicity could then prevent all others from designing and selling patterns for making aprons. Because, really, how many different ways are there to make an apron? To allow such copyright registrations would be to grant virtual federal monopolies to companies.

    In Baker v Selden, 101 US 99 (1879), the Supreme Court specifically addressed the issue of whether or not something made from copyrighted information in a book was covered by the copyright on that book. The Court said, "The mere statement of the proposition is so evident, that it requires hardly any argument to support it." The Supreme Court felt the whole idea was so obvious that it took little explanation but it explained it anyway by stating:

A treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs, or watches, or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective, would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein.

[emphasis added]

    No one can claim that the copyright on instructions on making and/or using an article gives the manufacturer the exclusive right to that article. How hard is that to understand? Apparently very difficult for the designers and manufacturers of patterns. The Supreme Court in Baker v Selden then went on to say:

That is the province of letters-patent, not of copyright. The claim to an invention or discovery of an art or manufacture must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained; and it can only be secured by a patent from the government.

    What the Supreme Court was saying was that is if someone wanted to claim an exclusive right to a product, they needed to apply for a patent. Once one copyrighted material and published that material, the information contained in the material was openly available for the public to use as they wished. Copyright only granted the copyright holder the exclusive right to publish the material, not to control how the material was used. Patterns are a set of instructions and pattern designers are attempting to extend their claim of copyright to material for which the user of the work provides the essential content, not its author. That is what makes the patterns systems. They are, without that input from the user, empty shells, waiting to be filled.

    In Baker v Selden, the Supreme Court also 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.

[emphasis added]


  • False claim:
    A sewn garment is simply a three-dimensional copy of a pattern and is not released from it's copyright.
    1. Actually this is a well-constructed lie that sounds believable. But, alas, it is a lie. A three-dimensional copy of two-dimensional artwork has been ruled to be a derivative under copyright law. And a derivative, a work that has been transformed or recast, must be independently copyrightable. Weissmann v. Freeman, 868 F.2d 1313, 1320-21 (2d Cir.), cert. denied, 493 U.S. 883 (1989). That means that you, the person doing the sewing, would be able to register a copyright on that infamous apron of which we have been speaking. If the apron were copyrightable, the pattern designer/manufacturer would have done that them selves. But, aprons, being clothing, and being a useful article, do not qualify for copyright registration. If it is a three-dimensional copy of a pattern, which is not copyrightable, under what copyright is it "not released" as claimed?
    2. If clothing is not copyrightable, how then can the pattern designer claim it is covered by the pattern copyright?

[page 806]
Since the aesthetic qualities of clothing, including swimwear, can rarely be separable from their utilitarian function, garments are generally not accorded copyright protection. Whimsicality, Inc. v Rubie's Costume Co., 891 F.2d 452, 455 (2d Cir.1989).

H20 Swimwear, Ltd. v. Lomas, 164 AD 2d 804 - NY: Appellate Div., 1st Dept. 1990

    and see also

[Page 1224]
As a general rule, items of clothing are not entitled to copyright protection. Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995)

EXPRESS, LLC v. Fetish Group, Inc., 424 F. Supp. 2d 1211 - Dist. Court, CD California 2006

    1. Federal Courts flatly state that the style of the dress is not copyrightable. Again, if the dress, "even an expensive Parisian couturier's design", cannot be afforded protection under copyright law, someone please explain how a claim that the pattern copyright covers the article made from the pattern be valid in any way?

[Page 737} The belt buckles in this case seem to belong more to the world of fashion design than to the world of literature and art, which is the traditional domain of copyright law. The status of designs for clothing is instructive. The design superimposed on a fabric is copyrightable, whereas the style of the dress (even an expensive Parisian couturier's design) in which the fabric is used is not - no matter how original, ornamental, or nonessential for function that design may be. 1 M. Nimmer, Nimmer on Copyright § 2.08[H] (1979). The fabric design can be seen as a separable artistic element, whereas the overall dress design - like the overall shape of the belt buckle - cannot.

Kieselstein-Cord v. Accessories by Pearl, Inc., 489 F. Supp. 732 - Dist. Court, SD New York 1980

[emphasis added]


  • False claim:
    Anything made from the pattern is a derivative and therefore belongs to the copyright owner.
    A derivative, a work that has been transformed or recast, must be independently copyrightable. Weissmann v. Freeman, 868 F.2d 1313, 1320-21 (2d Cir.), cert. denied, 493 U.S. 883 (1989). The original copyrighted work must be changed into a new work in some manner. If there exists a registered copyright, that copyright would be on the pattern. Therefore a derivative of the pattern would have to a new version of the pattern. We have already quoted from the Supreme Court where the copyright owner not have the exclusive rights to what is made from the instructions contained within the copyrighted article. And clothing is not copyrightable.


  • False claim:
    By purchasing this pattern, you agree to the following terms.
    Since when? Absent some form of consent, or a written contract, the pattern designer/manufacturer has no right to impose conditions upon the purchaser. The courts are in agreement that some sort of consent must be shown by the purchaser before any limitations on the use of the copyrighted item can be enforced. The simple act of printing such a statement on a web site or on a copyrighted article is not enforceable without consent before the purchase.


  • False claim:
    A pattern in a magazine has different copyright protections.
    Magazines are copyrighted by the publisher to protect those aspects of the magazine that are owned by the magazine. The rights to publsihed works, be they stories, cartoons, photographs or patterns, generally are not owned by the magazine and are not covered by the copyright registration on the magazine. The individual artists retain those rights. A magazine cannot obtain copyright protection on material it does not own.

    When the magazine is purchased, the right to use the patterns is also purchased just like the rights to any other pattern. However, we would caution the purchaser not to make copies of the patterns for distribution or sale.


  • False claim:
    Making items from our patterns for sale violates our copyright policy.
    Federal courts agree that copyright owners have ONLY those rights granted to them by statute. Therefore, US Copyright Law dictates what "copyright policy" is, and is not. The pattern designer has NO say concerning the use and further disposition of the article that has a registered copyright once the designer/manufacturer has releases that article into general commerce by selling it or by giving it away. And, once the designer/manufacturer places the pattern into general commerce, the pattern with which to make the "designs", that designer/manufacturer is giving the new owner the right to make the "designs".

    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" and/or policies. Again the Supreme Court:

The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.

Quality King Distributors, Inc. v. Lanza Research Int, 523 U.S. 135 (1998).

  • False claim:
    This pattern may not be used to make items for sale
    To be used for personal or charitable purposes only
    This pattern may be used to make items for your own personal use, for gifts or charitable donations.
    Items sewn from this pattern are not to be sold commercially without the express permission of the pattern creator
    And why not? Whether these statements are on the web site, in a magazine or even printed on the pattern, these statements are not enforceable. And, why do they bother? These people are in the business of selling patterns. If they make and sell articles from their patterns and they do not want competition, then stop selling the patterns. Otherwise, why don't they just shut up?
    1. We cannot locate a single federal lawsuit that has gone to trial where someone has been sued over the use of a pattern. Consider the millions and millions of patterns that have been sold in the last sixty years plus and not one lawsuit? It certainly cannot be because purchasers are strictly following the demands of the pattern designers/manufacturers. Patterns designers/manufacturers do not have the legal right to make many of the demands that they make.
    2. 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.
    3. Pattern manufacturers and designers do not have the statutory right to control items are made from their patterns or what is done with these items. See the Supreme Court quote above from Quality King Distributors, Inc. v. Lanza Research Int. Imagine purchasing a book on how to build a shed in your back yard from your local hardware store. The book certainly has plans (patterns) and instructions and is copyrighted. Do you expect to have to get permission from the hardware store, the lumberyard, the paint store and the book publisher before you build the shed? Of course not. And then ask for permission to post a picture of this shed on Facebook? Of course not. It is YOUR shed.

      Then, after building the shed, since you no longer require the services of this book, you sell it at a yard sale. Do you need permission to sell this book? Of course not. It is YOUR book. And the purchaser of this yard sale book? Does the purchaser need to ask the same permissions as well to build the same shed? Of course not. Sound silly? But this is what pattern designers expect everyone else to do. They are stuck on stupid. And they think you are stupid.

    4. For these claims to be enforceable, your consent to the terms before the purchase is required under the law. And this means active consent, not passive consent. Passive consent is where the designer/manufacturer makes the claim you consent to the terms by your use of the web site or the pattern. Active consent is a signed document or a click-through agreement whereby you physically agree to the terms before purchase or use.


  • False claim:
    Purchasing a license on the website grants a boutique sewer the right to sell one garment made from our pattern.
    If you wish to sell the items made with our patterns, or use them for business purposes, you MUST sign a licensing agreement
    Since we have established that the pattern designer/manufacturer has NO statutory authority to control what you do with the pattern, the claim that you have to have a license is just another method for the pattern designer to collect more money for their work. Cottage licenses, also called angel policies, are nothing more than perverted attempts at conning more money from the unsuspecting crafter and sewer.


  • False claim:
    It is also legal to make items for sale as long as you purchase a pattern each time so that the buyer is buying the pattern and paying you to sew it
    This is the "lite" version of demanding you purchase a license. There is nothing in copyright law that requires you to only use a copyrighted article once. Image throwing out books after you have read them? You know you have the right to keep the book and read it again. Or to sell the book if you wish once you are finished with it. So why is a pattern different? It isn't. Music CDs are copyrighted as are DVDs with motion pictures and shows. Do they require you to purchase a new CD or DVD every time you want to listen or watch it again? Of course not. So why do pattern designers make such a foolish demand?


  • False claim:
    Licensed fabrics cannot be used to make items for sale
    We talk about this one in detail on our page about licensed fabrics.


  • False claim:
    We will no longer debate the copyright issue. It is our rule. We are not lawyers here but we are allowed to have rules
    This one is a real pip. The web site this was taken from appears to not want to listen to facts, reason and the law concerning copyrights. As for them being allowed rules, their rules cannot be contrary to copyright law. And they are. Their simplistic mentality is indicative of pattern designers and pattern manufacturers. They want to do things their way and the rights of others be damned.


August 20, 2010 - UPDATE -
And the lies just keep on coming. Read our deconstruction of the McCall's Quilting article in their Sept/Oct issue, titled Know Your Rights (And Wrongs) , A Copyright Primer for Quilters by Janet Jo Smith, B.A., J.D. This error filled, self-serving tripe is being foisted upon the public by a company that has no registered copyrights for individual patterns? McCall's is lying. But that is what the pattern companies do.

Then, to compound the error, McCall's Quilting followed up with more copyright garbage in the Nov/Dec issue. We present the two articles, with our rebuttals: People Are Talking - from the Editors, where McCall's Quilting grants to buyers rights that McCall's Quilting does not have, and People Are Talking - from the Author, where Janet Jo Smith backtracks from some of her previous statements but she still is wrong, and still lying.


Under Works of The Visual Arts, the US Copyright Office lists "Patterns for sewing, knitting, crochet, needlework" as examples of what "may" qualify for copyright registration. From the US Copyright Office, Circular 40, Copyright Registration for Works of the Visual Arts [in PDF format], page 2, Useful Articles:

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 design.

[emphasis added]


There is no such thing in US Copyright Law that gives a copyright owner the authority to impose restrictions upon the use of copyrighted material once it has been sold or given away by the copyright owner.

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.


A pattern can be a template, or set of templates, for manufacturing an item, be it a birdhouse 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 in federal court a copyright almost always must be registered with the US Copyright Office.

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.

Pattern designers do not have the legal right to tell you what you can and cannot do with patterns that you have purchased from them. Period. Even if the pattern is a federally registered copyright, and very, very few are, their claims exceed the rights granted under copyright law. Period. They are lying to you. Period. Why are they lying to you? We think some believe what they say. We think some are just plain fools running their mouths. The rest are control freaks. None are correct.

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 or just plain lying.


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? See Baker v Selden above. The US Supreme Court says otherwise as do other federal courts. 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, considered by the federal courts to be an expert on copyright law:

[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.


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.

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 sometimes 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 misinformation 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, Embroidery Designs, and Quilting.


As a rule we do not link to web sites. Some web sites do link to these pages. Links to web pages are a criteria used by some search engines. These links do not constitute endorsement of these web sites or their products and are added as we locate them.
  • Art Of Tangle sells patterns and distributes free patterns. They link to this page as their copyright statement.

  • Top Spot For U cites these pages and links to the web site in general. Web site makes scrub tops and such.

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A Cup Of Joe For A Joe
by Green Beans Coffee Company
Karen and Mike, also known to you as Tabberone, have been actively participating in various troop support programs for a number of years. A recent one we have discovered is one run by the Green Beans Coffee Company of Larkspur, California. The Green Beans Coffee Company runs coffee houses in Iraq and Afganistan and at other US military bases around the world. Your donations are made into chits that are randomly given to military personal who frequent these coffee houses. You are then sent an email by Green Beans Coffee telling at what location your donation(s) was distributed. The recipient of your donation is also given the opportunity to email you a thank you, which many do.
More information is available at http://www.greenbeanscoffee.com/coj/index.php
We rarely link to other sites. It is a really good cause.

 

 

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