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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

The following email was received in reference to the quoted passage. We changed the wording slightly in response.

Sent: Wed 5/06/09 1:00 PM

FirstName: Jordan
LastName: O'Neill

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 adament 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 lying to you.

I believe you are responding to my post at . I am in the process of completing my substantial paper for my J.D. on garment patterns. Far from "lying", there is legal support for my statement. Some courts consider that knowledge of the license terms plus purchasing (or failing to return) an item constitutes consent to the terms. See e.g. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). So, under that analysis, purchasing a sewing pattern that states some restricts could be considered assenting to those terms.

I agree that there is a great deal of controversy and even circuit splits on this issue. See e.g. SoftMan Products Co., LLC v. Adobe Systems, Inc., 171 F.Supp.2d 1075 (C.D.Cal.,2001). I also agree that, ultimately, the correct legal analysis is that the typical "license" on a pattern is not enforceable. However, the issue is not currently clear-cut in the courts, and anyone planning on purchasing a pile of Simplicity Patterns to start their own clothing distribution company should be aware of the possible legal challenges.


Our response

As of today, Simplicity has 339 copyrights on file with the US Copyright Office and not one was for their standard over the counter patterns. Many were for the pattern packaging design. Why do you suppose that is? As a general rule the copyright office will not accept registrations for common fabric patterns.

That said, many consider ProCD to be a really bad court decision. And, ProCD involved a click-through or shrink wrap license where the court decided that there was enough consent from the viewing of the license and then clicking acceptance. There is NOTHING else that supports your position.

Perhaps you should look more to what the courts have said about the hair care products. Simply making a statement that is a condition of purchase is not legally enforceable. The courts have said a copyright owner cannot impose restrictions upon a purchaser beyond those allowed by statute. A use restriction on patterns, or anything else for that matter, is not an exclusive right granted to copyright owners outside of recordings, certain software, and movies.

As for technicalities, a copyright license is a transfer of rights in that copyright and the law requires any such agreement be in writing and signed by the parties involved. You have never seen this issue hit the federal courts because no pattern company is stupid enough to try and fight the losing battle.

Karen & Mike
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