Copyright Law - Patterns - Pattern Companies and Copyrights.

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Pattern Companies and Copyrights

Perhaps the title should read "Pattern Companies patterns and CLAIMED Copyrights"?
Butterick, McCall's, Simplicity and Vogue are probably the largest pattern manufacturers alive today. Universally, they will lie to you about their patterns, their copyrights, and your rights as a purchaser of their products. They are liars. Period.
Fact: patterns are not generally copyrightable. A pattern can be a template, or set of templates, for manufacturing an item, be it a bird house or a dress. Templates are not copyrightable. Another fact is the lack of registered copyrights by the Big Four named above. We have a page devoted to each of the Big Four and their lack of pattern copyrights. Drum roll, please. Butterick Patterns has some 33 registered copyrights. There is not one pattern registered. There are books and collections but those are copyrighted as books and collections, not as patterns. McCall's Patterns has some 108 registrations. There is not one of McCall's individual clothing patterns registered. But that is not what McCall's Patterns will tell you. As for Simplicity Patterns, the numbers change but not in the way one would expect. Beginning around 1995, Simplicity began getting a registered copyright for the pattern envelopes. Simplicity has some 240 registered copyrights and most appear to be for "product packaging". Except for a few registered copyrights in 1978 for specialized patterns, Simplicity Patterns has no individual clothing patterns copyrighted. that leaves Vogue Patterns. Vogue has 24 registered copyrights. The patterns shown as registered in 1957 through 1959 are re-registrations of earlier registrations. What these registrations involve is anyone's guess but we feel it is unlikely they actually include the patterns
The Big Four have a total of just over 400 registered copyrights in file and these 400 plus copyrights are for few, if any, patterns. Fact: these pattern companies are lying to you.And they will continue to lie to you. However, consider this thought: why would a pattern company even remotely care if you used their pattern to make something for sale? It is not like they are in the manufacturing end of the business. And if they were in the manufacturing end of the business, and it was a profitable business, why in the world would they publish and sell patterns that would compete with a profitable business? And even if they were, or are, that stupid, most people who buy their silly-ass patterns are not going to make very many of the items to be even remotely competitive. Does one have to be mentally retarded to work for a pattern company? It appears so.

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.''
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.

A quick check of copyright records does not reveal any copyrights registered with the U.S. Copyright Office for clothing patterns by most pattern companies. 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.

So when pattern companies tells you that their pattern are copyrighted, it is very probable the pattern company is lying to you. When the pattern company says you cannot use the pictures of the finished product from the pattern envelopes before 1989, it is very probale the pattern company is lying to you. Why is a pattern company wasting its time and resources on such silliness? We think it is the "Playground Bully Syndrome" at work.

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
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