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| Patterns and how they are affected by copyright law |
Last Updated January 11, 2010
| 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 elegible for federal copyright nor is there "common law copyright" protection for things defined as being inelegible for federal copyright protection. |
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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.
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. |
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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.'' |
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A quick check of copyright records does not reveal any copyrights registered with the U.S. Copyright Office for clothing patterns by Simplicity, Butterick, or
others. 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: |
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
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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