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Tabberone is pronounced tab ber won |
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| Patterns and how they are affected by copyright law |
Last Updated Sepyember 11, 2011
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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. |
| 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: |
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. |
| 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. |
| 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. |
| 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. |
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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. |
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We cannot locate a single federal lawsuit that went to trial where someone has been sued over the use of a pattern. Consider the 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 manufacturers.
Patterns manufacturers do not have the legal right to make many of the demands that they make. 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.
Pattern manufacturers and designers do not have the statutory right to control how many items are made from their patterns or what is done with these items. 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. |
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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. 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". 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. 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. Does Betty Crocker tell you you cannot sell those cookies at a bake sale? |
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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? 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: |
[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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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 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. |
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
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 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.
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