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The following email is reproduced as we received it on October 6, 2008. It has been edited to remove extraneous information and identity. The response was basically one large paragraph which we have broken down into more readable segments. Our comments follow the email.


Hi,

I run a shop on Etsy selling quilts I hand make. Some are of my own design and some are of patterns I have purchased. I recently purchased a pattern from another Etsy shop that includes fine print that says:

Quilts created based on this pattern are not to be offered for resale.

When I questioned her legal ability to prevent me from selling quilts made based on her pattern, this was her response:

Perhaps I miscommunicated -- the pattern is indeed sold outright as a physical product, as are other intellectual works: CDs, books, et cetera. But like those, purchase of the pattern does not provide a license to various elements of the underlying copyrighted work: for instance, you couldn't sing a song on a CD you purchased, then record and sell that song, nor could you make a film based on the book. In all cases, the First Sale Doctrine gives you the right to resell the item you purchased -- the CD, book, or pattern -- but that is all.

If you want to do more, you must license the songs, or purchase options for the book. This is the core of copyright law. That's all the license text was meant to communicate: you have purchased the *pattern*, not the *design*, and although you may use the pattern as you see fit, you cannot make and sell a work based on the underlying *design* without a license.

And as you say, you have purchased the pattern, not licensed anything. This is irrespective of attribution -- attribution has nothing to do with it and, in fact, in many cases attribution actually makes you *more* liable, not less (although that's trademark law, not copyright, and I'm not claiming a trademark on these quilt designs). (You may have heard attribution mentioned in the context of fair use, but I think you'll find that to qualify as fair use, you also need to satisfy several other very well-defined criteria, which this case does not)

If you find anybody, ever, selling their version of a song on a CD or their adaptation of the story in a book -- even though neither actually duplicates the sound of the original recording, or the words of the original book -- and claiming that they're in the right because they purchased a CD or book, that person is likely to be sued very soon by a very powerful organization who is entirely in the right, legally. Some people believe that patterns are *different* for some vague reason, but in fact they are not, and my license text is simply meant to dispel that erroneous assumption.

If you followed that and disagree, or didn't follow it, that's fine -- it's just an intellectual debate at this time, since as you said you aren't even planning to sell quilts based on this pattern at the moment. Carrying the discussion further probably won't be particularly fruitful, and probably the only way to be certain you're right is to consult with an attorney, which I welcome you to do -- and if that competent counsel informs you that you're right and I'm wrong, by all means proceed.

I would love to hear from you and understand how I can best respond.

Michelle
Quilter on Etsy


Our Response

In her first paragraph, the pattern seller has quoted copyright law correctly. But we think for the wrong reasons. But still, it's correct.

Paragraph two is a different matter. She claims "you have purchased the *pattern*, not the *design*" but seems to use this to incorporate the end product, let's say an apron, as being attached to the "pattern" through copyright law. And what is the "*design*" she references? The pattern? The pattern, not the design or the end product, is copyrighted. The end product, being a useful item, is not covered under copyright law. Useful items are specifically defined in copyright law § 101. Definitions:

A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.

Clothing, for example, is considered to be a "useful item" and therefore not copyrightable. The only way the clothing would possibly be covered by copyright law is if it embodied a copyrighted work such ornamental features, like a Halloween costume with sculpted bunny head, which could be entirely separated from the costume’s clothing-like functional aspects. But in this example, the copyright would be on the Halloween costume, not the pattern for making the Halloween Costume. A mannequin head is not copyrightable because it is a useful item but the face used on that head is.

In paragraph three, the pattern seller rambles on about "attribution", which is basically giving the "author" credit for the work, and under US copyright law this is considered a "moral right" but it is not a lawful requirement. Indeed, under trademark law, attribution isn't required since the Supreme Court ruling in 2003, Dastar v. Twentieth Century Fox. Her point here is muddled at best.

Patterns are different than songs or books. If you were to sing "Happy Birthday" at your daughter's party, it would be a non-commercial use of a copyrighted song and the copyright owner would not seek damages ("Happy Birthday" is a copyrighted song). However, for a TV show to play the song on the air, that requires payment to the copyright owner. You cannot record the song and sell it, even with different lyrics. The song was sold to you with the intention that you play it for your non-commercial enjoyment. The book was sold with the intention that you read it. In both cases, the original item is unaltered and still available for you to use, repeatedly if you wish. You are not making anything physical item from listening to the song or from reading the book.

A pattern is sold, or published, with the intention that you use the pattern to make something. It could be a pattern for making a bird house from wood. Does that mean you cannot make more than one bird house? No. Like the song recording and the book, the pattern is there, available to be used again. But, unlike the sound recording and the book, the pattern requires the purchaser to obtain materials with which to make something. Tangible items that are outside the copyright. These tangible items are then sculpted according to the pattern's instructions and then assmbled into a useful item. Unlike listening to the sound recording or reading the book, using the pattern results in an end product that can be physically handled.

For a pattern seller to tell the user they cannot sell the end item defies logic. It is the pattern user who has spend the money to purchase the materials needed and then spent the time to shape the materials and assemble the materials into the end product. That was the purpose in selling the pattern. So, from where does the pattern seller get the notion that copyright covers the end product? Wishful thinking, no more.

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