Tabberone Logo

Tabberone is pronounced tab ber won
not tay ber own

Tabbers Temptations     www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me!
"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke


Quilting & Knitting
And Copyright Law

Last Updated April 2, 2012


UPDATE - April 2, 2012
There has been a flurry of activity in the Blogosphere concerning a confrontation between Carolina Patchworks, CT Publishing and some designer named Kate Spain. We have gathered what we could from the various postings and we will comment on them, click here.

This page about Kate Spain was been posted to dispel the rumors that a quilter, Emily Cier, was sued for using licensed fabric in her quilt. That is not true. Legally, she was never in danger of losing a lawsuit over the use of fabric designed and sold by Kate Spain


Quilters are passionate about their craft and like most passionate people, they tend to focus on what they want to believe as opposed to what they should believe, and those beliefs should be based upon facts, statutes and court decisions. Most articles out there are written by people who quilt so their articles tend to reflect their biases. We do not quilt so our bias is reflected by facts, statutes and court decisions.

Quilters are talented people. And patient. And detail-oriented. All excellent qualities. But quilt designers who sell their patterns to the public tend to copy the general misinformation attitudes of clothing pattern designers when it comes to copyright and the use of those patterns. We are going to discuss the various lies that have become entrenched in the pattern industry from the perspective of quilting. You might also want to read our pages on PATTERNS which focuses primarily on clothing patterns and copyright law. We are trying not to repeat the parts of PATTERNS on these pages but they do apply to all patterns and there will be some redundancy.


Read the Simplicity email from 2009 that attempts to tell people how they can and cannot use a Simplicity pattern. We deconstruct this lie-filled email.

Let us begin by repeating the lies most often told by pattern designers and pattern manufacturers. Keep in mind that the end product of the pattern does not matter. A pattern is a pattern. Whether the pattern is for clothing, quilting, embroidery or making a bird house, it is a pattern. The following false claims are taken directly from various pattern and craft sites.


  • False claim:
    All of our patterns are copyrighted.
    There is a difference between something having copyright protection and actually being copyrighted. The former is automatic while the latter requires the pattern be registered with the US Copyright Office. For some reason pattern designers and manufacturers believe there is a special copyright law that applies only to them. They are wrong. Almost all pattern designers/manufacturers do not register their patterns with the US Copyright Office.

    You should take the time to register your design. It costs $35.00 and only takes a few months when done on-line. You can register your design either singularly or in groups. The focus for quilters should be their designs. Patterns are generally not copyrightable. Quilts are useful articles and do not qualify for copyright registration. However, the design on the quilt, if it is original to you and it has a minimum of creativity, is copyrightable. If you are a serious quilter and you are going to sell patterns of your designs, by all means get them registered.

    If you register your design you must remember that is it the design, not the quilt, that has the copyright protection. Anyone using that design on a fabric, painting or other medium could be found gulity of infringement if there is a substantial similarity between the two works.

    Unregistered copyrights lack legal enforceability.. The Copyright Act. 17 U.S.C. 411(a) requires that ''no action for copyright infringement my be brought until the work that is the subject of such action has first been registered in the Copyright Office, or at least an attempt to register has been made and refused by the Copyright Office.'' 3 Nimmer 12.08, at 12-132.21. If the copyright registration is denied the party can still go into federal court on a claim of copyright infringement but the heavy burden of proof of copyrightability is on the party claiming copyrightability which no one that we can find has ever overcome.

    If the work is registered after the alleged infringement, statutory damages and legal fees are not available to the claimant.


  • False claim:
    Any finished product made from a copyrighted pattern, step-by-step instructions, chart, or photograph is also covered under copyright law.
    False, false, false. The design, not the end product - the quilt, is the subject of the registered copyright. When someone sells a pattern that contains a copyrighted design, they are selling to the purchaser the right to make that article with the copyrighted design. The right of the copyright owner to control what is done with that copy (in this case the pattern) is lost one the pattern is sold or given away.

    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 by stating:

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.

[emphasis added]

No one can claim that the copyright on instructions on making and/or using an article gives the manufacturer the exclusive right to that article. The Supreme Court then went on to say that is if someone wanted to claim an exclusive right to a product, they needed to apply for a patent, not through printing and selling instructions on how to make the item..


  • False claim:
    Anything made from the pattern is a derivative and therefore belongs to the copyright owner.
    A derivative, a work that has been transformed or recast, must be independently copyrightable. Weissmann v. Freeman, 868 F.2d 1313, 1320-21 (2d Cir.), cert. denied, 493 U.S. 883 (1989). The original copyrighted work must be changed into a new work in some manner. If there exists a registered copyright, that copyright would be on the design on the quilt. Therefore a derivative of the pattern would have to be a new version of the design. Someone using the pattern to make the actual design is not creating a derivative but rather an exact copy as intended by the pattern designer.


  • False claim:
    By purchasing this pattern, you agree to the following terms.
    Since when? Absent some form of consent, or a written contract, the pattern designer/manufacturer has no right to impose conditions upon the purchaser. The courts are in agreement that some sort of consent must be shown by the purchaser before any limitations on the use of the copyrighted item can be enforced. The simple act of printing such a statement on a web site or on a copyrighted article is not enforceable without consent before the purchase.


  • False claim:
    Making items from our patterns for sale violates our copyright policy.
    Federal courts agree that copyright owners have ONLY those rights granted to them by statute. Therefore, US Copyright Law dictates what "copyright policy" is, and is not. The pattern designer has NO say concerning the use and further disposition of the article that has a registered copyright once the designer/manufacturer has releases that article into general commerce by selling it or by giving it away. And, once the designer/manufacturer places the pattern to make the copyrighted design into general commerce,, that designer/manufacturer is giving the new owner the right to make the "designs". Again the Supreme Court:

The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.

Quality King Distributors, Inc. v. Lanza Research Int, 523 U.S. 135 (1998).


  • False claim:
    You need permission from the quilt design to sell the quilt..
    And why not? Whether these statements are on the web site, in a magazine or even printed on the pattern, these statements are not enforceable. And, why do they bother? These people are in the business of selling patterns. If they make and sell articles from their patterns and they do not want competition, then stop selling the patterns. Otherwise, why don't they just shut up?

    They sold the pattern on how to make the quilt. The purchaser must then invest the time, effort and cost of materials to make the quilt. There is absolutely nothing in copyright law that grants this authority to the copyright owner. Nada, zero, zilch. You will note that they cannot point to a court case that upholds this false claim. More on court cases concerning quilts below.


Court cases

All of the court cases we have located concerning quilts share one main factor: the unauthorized copying of a quilt design. That is illegal and it should be. But not one of the cases involves the use of a quilt design pattern that was purchased and then used to make and then sell the quilt. Likewise none of the cases cover the designer issue of public display of a quilt made from a lawfully obtained quilt pattern. While quilt designers claim that both are illegal, none have taken the issue to trial, or possibly to court, that we can find.

Click here to read the court cases we have located. .

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.


Originality vs Original
There are misconceptions concerning copyright law and word "originality" and the word "original".

For a work to have copyright, the work must be "original" to the creator. It must be the sole creation of that person who is claiming copyright. For one to say their work was "inspired" by the work of another, the work probably is not original. That does not mean that your inspiration cannot come from another source, it just cannot come from the work of another. "Inspired" is often a word used in place of "copied". Sunsets, a bird nesting, a butterfly on a flower, can be legitimate sources of inspiration. Artwork and figures in public domain can be used as inspiration. But the design on someone else's quilt, Mickey Mouse, or a well-know sports figure, regardless of how much it is altered, does not qualify as "original".

But a work does not necessarily qualify for copyright registration just because it is "original" to the creator. The work must display a minimum of "originality". A photograph of a quilt hung for display would lack "creativity", or "originality", and as such that photograph would likely be denied registration, as a photograph. The quilt, the subject of the photograph, might qualify for registration as art work if it was sufficiently creative. Courts have consistently held that the "originality" threshold is very low.

And, to confuse the situation even further, two people can "create" very similar works independently and both works would qualify for copyright. Because the two works are "original" to the creators.


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. 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.


Copyright Statements
Quilters are passionate about their craft and for good reason. A really fine quilt takes a lot of time and a lot of work, not to mention the imagination that goes into a good design. They are also passionate about the use of patterns and whether or not the pattern maker has a right to limit the use of that pattern.

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 copyright statement by the copyright owner is irrelevant, extraneous, unenforceable and improper.

Designers who tell you to read their copyright policies are clueless about copyright law. The US Constitution gives Congress the exclusive right to formulate copyright law. The ONLY rights that a copyright owner has are those that are specified by statute in US Copyright Law. A copyright owner MAY NOT reserve rights that contrary to US Copyright Law nor may a copyright owner fabricate rights that are not granted under US Copyright Law.

Statements On Products
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.'").
You should not
  • Make copies of the pattern to either sell or give away
  • Post a copy of the pattern on the internet for others to use
  • Modify the pattern slightly and sell it as your own creation

Blogs
We have mentioned licensed fabrics and patterns in other pages. Blogs about quilters and their patterns have generated a lot of interest in the subject so we decided to dedicate a page to quilters and their patterns. In doing so, we are going to directly address some postings on some of the blogs.


On www.QuiltingBoard.com (http://www.quiltingboard.com/posts/list/16359.page) someone started a thread called "what is considered your own quilt pattern?" The first responder pointed the questioner to an article titled, Copyrights And Quilts by one Maria Elkins. There are many things wrong with this article.

First and foremost, nowhere on that page does Maria Elkins identify herself as a quilt designer and seller. This is an important omission. She does not tell the reader where she sits before telling the reader where she stands. She has a bias that is important for the reader to know and understand in order to be able to fully assess the information being presented. In our mind, that makes Maria Elkins inherently dishonest and a very untrustworthy source of information. The copyright statement at the bottom of the page means nothing as many readers will not go beyond that page.

The 75 year limit quoted is not accurate. Copyrights that were not renewed in the 1920s and 1930s are often in the public domain. In addition, work that was published without the required © in the same time period automatically passed into the public domain. The 1940s and 1950s have similar lapses but not as many. Also, original work is now automatically considered protected by a copyright but it is not copyrighted as far as being able to go into court to protect that copyright. A work must be registered with the copyright office for full federal protection except in the Ninth Circuit..

And originality is a must for a copyright. Simply taking a variety of quilt blocks and laying them upon a surface lacks creativity. And there is no such thing as changing a design or pattern by a certain percentage to make it yours. If a reasonable person would look at your creation and say it was copied from another design, that is copyright infringement. Don't fall into that trap.

Actually there is no legal limit to how many copies of a pattern one can make for their own use if they are being consumed in the process of making something. The key here is personal use. Giving away copies is infringing. As for classes, there is no such thing as implied permission. Either the instructor reserves all rights, in writing and signed by you, or the instructor doesn't. If the instructor does not have you sign anything that restricts your use of any patterns or course materials then all use is governed by federal copyright law not by the desires of the instructor. As such, you do not require special permission at any time to sell the quilt made or to display it.

UPDATE March 6, 2009 - On March 6, 2009 we received an email from Maria Elkins in which she accuses us of making "false and defamatory" statements and she demanded we remove her article from this web site. Our email response takes exception with her version of the facts and declines her most gracious demands. "Facts are either correct or incorrect, regardless of who provides the information." We're not really sure what she means by this statement. Perhaps someone can enlighten us? It seems she sought help from others before emailings us because she posted a cry for help on some board seeking advice about how to write a cease and desist email.


Another poster on www.QuiltingBoard.com referenced another link, a blog titled, Copyright & Other Legal Issues on the www.QuiltingInharmony.com web site. This starts off well but it quickly bogs down with false interpretations. Remember, corporate lawyers are in the business of protecting their clients, i.e., businesses, against the likes of you, the home quilter.

"But the exhaustion extends only to the physical fabric that you got from the official source." Wrong. You have the right to use that fabric to make and sell things (see Precious Moments vs La Infantil, 971 F. Supp. 66 (D.P.R. 1997)) We sued Disney, Sanrio (Hello Kitty), United Media (Peanuts) and Major League Baseball in federal court over this same issue: the use of their licensed fabrics to make and sell items.

"...the *quilt design* ... is a separate work, with a separate copyright". A copyright exists ONLY in the work is sufficiently original. The original "traditional blocks" used do not obtain copyright protection themselves if you use them in a new design; however the overall design may qualify for copyright protection if original enough. The problem is that public domain quilt patterns going back centuries are available on-line.

"A license is contractual, so she can impose any terms in the contract that do not fly in the face of public policy or the basic statutory scheme of copyright." A contract exists only if there is agreement on the terms and is not really enforceable unless it is done in writing and signed by both parties. A number of courts have held a copyright owner may not impose restrictions greater than those allowed by federal law. This statement about being able to "impose any terms" is so very false it defies logic. Software companies are seeing their "license agreements" being struck down every day for this very reason (see End User License Agreements (EULAs) for more information). A number of courts that have addressed the validity of the shrinkwrap license have found them to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or unacceptable pursuant to the Uniform Commercial Code. Step-Saver, 939 F.2d 91; Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (Sth Cir. 1988). These courts have refused to recognize a bargain in shrinkwrap license that is not signed by the party against whom it is enforced.

"If you make pictures of the finished quilt, then I think there is likely to be a problem..." That depends upon the purpose of the pictures. If you have made the quilt from a lawfully acquired pattern, that pattern purchase gives you the rights to the item made from that pattern. Your quilt; your pictures of your quilt. If you want to sell the quilt, copyright law specifically gives you permission to use pictures to sell it.

"Finally, don't make money off anyone else's work" Why not? If you purchased the pattern you have that right. They voluntarily sold it to you. NASCAR drivers don't build their own cars; they buy Fords and Pontiacs and modify them. They have that right. Don't you think Ford dislikes when the race is won by a Pontiac? But imagine Ford saying "This car can only be used for non-commercial home use". Profit is a perfectly reasonable motive and is recognized under the law.

In a follow-up post she says, "Again, it's not the creation of the potholders that matters, it's trying to sell them." Wrong, wrong, wrong. It is perfectly legal to do so and we have established that fact in lawsuits against Disney, Major League Baseball, Sanrio, and United Media (Peanuts). There is absolutely no court case that says otherwise.


A third web site reference on the www.QuiltingBoard.com web site references the web site of Paul Rapp, an attorney, with a piece titled, Quilt This. An interesting story with no false assertions about copyrights. Some attorneys do not mess it up.


On the iVillage Garden Web web site (ths.gardenweb.com) a link to a GeoCities web site was posted about copying patterns. The lengthy 8-page link, by one Jennifer Tocker, is titled "Copyright FAQs for Knitters". She makes many of the the usual mistakes. For example. she is wrong when she says you need permission to sell an item made from a lawfully acquired pattern. She doesn't announce her bias but we suspect from her web site she designs and sells. She should be more open about this.


As far as the web site Esty.com is concerned, it is overloaded with know-it-all crafters who insist they are correct but they cannot quite any law or court case to back them up. They toss their arguments about without regard to verification. They misquote false facts with which they agree and summarily dismiss any thing that interferes with their deep dark little worlds. They want to believe the designer has more rights than allowed by law so they are incapable of engaging in intelligent dialog about any thing else.


We thought we had located a piece by a lawyer who properly addressed the copyright issues, but alas, this lawyer falls into the same trap as do the design sellers. On QuiltArt.com a lawyer named Carol Roberts either posted her missive or someone else posted it. We post it so you can see the reasoning behind some of the many wrong assumptions in the world of quilting.

"When you use the patterns in Susan Carlson's book to recreate one of her fish quilts you are copying the work of the original designer" is reasonably lacking in fact. First, the pattern was included in the book as part of the book and that is one of the reasons the book was purchased. By recreating "one of her fish quilts" you are using the book, and the pattern, as intended. By selling the book, and the patterns, the copyright holder has relinquished the right to prevent the purchaser from making the quilt or even selling the quilt. There is no "copying" involved as it pertains to copyright law and the exclusive right of the copyright holder.

The term "custom and usage" is commonly used in commercial law, and refers to any industry usage, custom or practice that has "such regularity of observance" that it justifies an expectation that it will be observed in the transaction at issue. Copyright holders do not have to enforce their copyrights unless they want, unlike trademark infringement where the law mandates action be taken to preserve the trademark. Therefore there is no "custom and usage" that would apply to using someone else's copyrighted work at a quilt show. Carol Roberts is way wrong on this point.

Then, she steps in it more. "But, you put a price tag on that copy" is the hint that after buying the book which contains the pattern, someone cannot sell what they have made. By selling the book, and the patterns, the copyright holder has relinquished the right to prevent the purchaser from making the quilt or even selling the quilt. Attribution is not required under US copyright law. Then her reasoning gets muddled because she seems to imply that it is alright under "custom and usage" to do it at small regional quilt show but not at the really big shows without stating where the law makes this distinction.

Our problem with types like her is that she actually believes, or wants to believe, what she has written, and she won't let the facts get in her way.

General
Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions

Corporate Lawyers
Cartoons | Code Of Ethics | Courtroom Remarks | Definition Of A Lie | Jokes | Lawyers | Lying | Who Have Lied

eBay - Land The Game

Definitions

Trademark Definitions
Blurring   |   Confusion   |   Damages   |   Dilution   |   History   |   Initial Interest Confusion   |   Likelihood Of Confusion   |   Material Difference Standard
Parallel Imports   |   Post-sale Confusion   |   Puffery   |   Secondary Meaning   |   Subsequent Confusion   |   Trademark Abuse
Unauthorized Use   |   Unfair Competition   |   What is a Trademark?
Copyright Definitions
Angel Policies   |   Contributory Infringement   |   Copyrightability   |   Copyright Extortion   |   Copyright Misuse Doctrine   |   Derivative   |   The Digital Millennium Copyright Act
EULA   |   Fair Use   |   First Sale Doctrine   |   Product Description   |   Registration   |   Registration Denied   |   What is a Copyright?   |   What is not Copyrightable?
Other Issues
Embroidery Designs   |   FAQs & Whines   |   Image and Text Theft   |   Licensed Fabric   |   Licensing & Licenses   |   Patterns   |   Patterns Index   |   Profit   |   Quilting
Selvage   |   Stanford School of Law Case Outline   |   Tabberone Disclaimer   |   Trademark Extortion   |   Urban Myths   |   What To Do If You Are Veroed

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

Federal Lawsuits
Filing A Federal Lawsuit
Setting Up | Standing. | Joinder of Parties. | The Complaint | Their Answer | Default Judgment
F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Your Reply | Summary Judgment Motion | Affidavits | Time Extension

Defending Against A Federal Lawsuit
The Complaint | Your Answer | Denials | F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Affidavits | Time Extension

VeRO (Verified Right's Owner Program)
VeRO Commandments | VeRO-Verified Rights Owners Program | Counter Notice Letter
Counter Notice (pre-2003) | Counter Notice present | On-Line Survey from 2004 | Articles about VeRO | What To Do If You Are Veroed

Original material by Karen Dudnikov & Michael Meadors is © 1999-2014

vBulletin statistics