Source: QuiltArt.com message board - membership is required |
March 7, 2009 - content has not been altered.
Copyright and the Local Quilt Show - RELAX
Margot Behsman mbehsman at cpinternet.com
CAROL--- It is great that you are willing to share all your knowledge and researching into this.. thanks -- It is nice to have a lawyer on the list.. and one who is so articulate and sharing! thanks Margot
I'm the one who posted the copyright stuff that caused all this uproar, so lets talk about your local quilt show and displaying copies of published works created by other people. I have read the post at the Quiltdesigners list authored by Carolyn Peters, a practicing IP attorney. She and I come to the same conclusion about your right to show your own copies of others' art, but we have different reasons for the same conclusion. With this law stuff this is what makes a horse race, or a lawsuit - different strokes, if you will. It also makes for multiple defenses to a charge of infringement. The law is not a static structure - it flows. Its not a science, but an art.
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, just like the art student at the Louvre copying the Mona Lisa. Since the current resurgence of quiltmaking and its progeny, the art quilt, started...in the 70s?? 60s?? whenever... a custom has grown up around this phenom called the quilt show. All over the U.S. and around the world there are quilt shows put on by local guilds, at county fairs, at the local senior center or library and for all these years quilters have shown quilts they have made that are copies of original art. So how do we get away with it?
There is a concept in the law called "custom and usage". Over these years thousands of copies of original art have been shown at thousands of shows by a gabillion different quiltmakers and we never really think about it much. IMO, this use of a copy made by someone other than the copyright holder, is an extension, or part of, *personal use*. It is so accepted in the quilt community that by "custom and usage" it has become IMO an exception to the copyright law and a defense to a charge of infringement. IOW, the fact that "everybody does it", the quilt show promotors at the local level accept and/or invite this practice, AND the copyright holders of the original art have chosen not to enforce their rights at this level of exhibition for all this time, combine to make this use of a copy of an original work of art a legitimate use.
At this point in time, let's say, for purposes of illustration only, that Judy Mathieson decided she doesn't want *any* quilter showing *any* copy of her work at *any* quilt show or exhibit, ever again. So she takes on Holly the Hobby Quilter who showed her copy of one of Mathieson's quilts at the local guild's quilt show in Irvine, California - actually sues her in federal district court for copyright infringement (which is such an expensive undertaking that, if Mathieson could somehow meet the requirements of bringing such a lawsuit her children can kiss their inheritance goodbye, not to mention the family home.) Holly defends herself based upon Peters theory of First Use Doctrine as her first defense, and uses "custom and usage" as her second defense, and as part of her defense she documents 100 instances in which copies of Mathieson's work have been shown/exhibited at similar local shows with no response from Mathieson. IMO, Mathieson loses and may even have to pay Holly's costs of suit (altho, there is one US Supreme Court case that indicates not so.) In this case the copyright holder has allowed this "personal use" exception to take place for years and years without seeking to perfect her rights, and she can't overcome her laxity. The copyright holder can only protect or "perfect" his/her rights by suing someone and winning.
So, having acquiesed in this local show practice for all these years any copyright holder who would come forward to try to stop it at this point has a real uphill battle to fight. But, you put a price tag on that copy of Mathieson's work and try to show it at the Sedgewick, with or without proper attribution, and I'd be first in line to help Mathieson write her complaint. Or, you submit that copy, with or without attribution to Mathieson, to a show not in Irvine, but at Houston International, AQS, the Dairy Barn, Visions, Quilt 21, etc., and get ready to eat your fabric. This is the big league and copyists don't belong here, any more than the art student's copy of the Mona Lisa belongs at the National Art Gallery. And the copyright holders should be making sure that the copyists don't get in at this level. The rules of the "big deal" shows alone should stop you, and if they don't, they oughta be changed. The "big deal" shows are at a whole different level and IMO none of the above defenses are good enough at that level. I am a retired attorney, not a practising attorney, and this is what *I* think. Others will disagree with me, which is why if you think you have a problem in this area you need to consult your own IP attorney - not the gal down the street who just graduated from law school and does a lot of personal injury and divorce work, but a seasoned attorney experienced in all phases of copyright (or Intellectual Property - IP) law. Its these disagreements that make the world go round - if we did not disagree we would never need courts or those pesky lawyers.
NOTE: As far as I know the phrase "personal use exception" is an original term coined by me - I have not read this phrase in any of my research. I made it up to illustrate my own argument.
For those of you who just can't stand the use of legalese, that's tough! We wouldn't be worrying about, or talking about, copyright issues unless at least some people were worried about being infringers and some other people were worried about being infringed upon. These are legal issues and they are discussed in legal terms, and if the problem is big enough its discussed in courts - and copyright infringement is a federal case every time. But it is ONLY a court case IF the copyright holder chooses to make it so. NOBODY cares about your rights if you don't and NOBODY will, or can, bring an infringement action on your behalf - unless you're dead.
And, for whoever it is who has been defaming me by telling people that I have never been an attorney or practised law please cease and desist - NOW. The *truth* is that I graduated from law school in 1976, actively practised law, primarily in the field of contract negotiation and business litigation for about 20 years in the State of California. I have taught law in a real law school and at the community college level. I am now retired and am not authorized to give specific legal advice to anyone, but I still have a brain and certain training and experience and am perfectly capable of understanding and interpreting the law and as authorized as anyone else to share the results of my research and my opinions about it. So, sweetie pie, unless you *really* want to see the inside of a courtroom you better make sure of your facts before you recklessly attack my integrity and credibility.