Quilting

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.

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.'").

We have mentioned licensed fabrics and patterns in other pages. Recent blogs about quilters and their patterns has 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.

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.

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.

"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 over this issue.

"...the *quilt design* ... is a separate work, with a separate copyright". A copyright exists ONLY is 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.

"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.

"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.