Tabberone is pronounced tab ber won
The Tabberone™ Archives|
These articles concern what we consider major trademark and copyright issues. They are usually reproduced with the original source referenced. Bear in mind, these articles are copyrighted and commercial use without permission of the authors may be considered infringement. The intended use here is educational, commentary and non-commercial. The reason they are reproduced in the Tabberone™ Archives, as opposed to just providing a link, is because links disappear and pages are removed. That presents a messy confirmation process that is annoying to the browser (you) but also presents a credibility issue. We do not claim any rights in these pieces. Do not regard the absence of a copyright statement or © to mean the article is not copyrighted. Some sites do not have a copyright statement.
When an article or a comment is posted on the internet by the copyright owner, the owner is seeking a world-wide, 24/7 audience; sometimes for a limited amount of time, sometimes indefinitely. In essence, an internet posting intentionally relinquishes one's copyright for exclusivity because the owner has posted it on the internet to been seen by everyone, everywhere. The Tabberone™ Archives non-commercial duplication of the posting is simply a continuance of the original wishes of the copyright owner. We post these articles for reference, for commentary and for confirmarion of our position.
Source: http://www.paulrapp.com/display_article.php?id=6 |
February 17 , 2009 - content has not been altered.
Wherefore Thou Art #6 |
A couple of years ago, I was contacted by a highly agitated quilter, who I’ll call Jane. Jane believed that she was about to be sued by another quilter from the Midwest over the appropriation of a quilt design. “This is a hot topic among quilters,” Jane said.
I was rather surprised to learn that were any hot topics among quilters, given my understanding of quilting’s status as a time-honored craft, a quintessential form of folk-art, and a quiet solitary pursuit of women of a certain age. Boy, was I wrong. Quilting is a dynamic artform and has experienced a renaissance of sorts in recent years. And, this being the information age in which all sorts of intellectual properties are quickly becoming monetized, quilts are not immune from controversy and greed.
Photographs of one of Jane's quilts had recently been published in a national quilting magazine. The quilt was based on a combination of geometric patterns, or, in quilters’ parlance, “blocks.” Jane had based her quilt on a traditional block, one that has been around for decades, and Jane had the documentation to prove it. While Jane was in the process of putting her quilt together, she spotted a photograph in another magazine of an Iowa quilter’s quilt that incorporated the same traditional block. Excitedly, she posted the photograph of this other quilt on her website, which had become a quilters’ on-line gathering place, where quilting techniques and the progress of various quilting projects was discussed. Jane noted that the picture of the other quilt “inspired” her, by which she meant that if someone else could finish a quilt with this fairly intricate design, well, she could, too.
Some months later, the Iowa quilter spotted a photograph of Jane’s finished quilt in the national magazine. Annoyed at the resemblance, the Iowa quilter did some digging and found Jane's website. She saw the photo of her quilt and Jane’s statement that it inspired her, and decided to go on the warpath. Hell hath no fury like a quilter scorned, I guess. In come the attorneys.
Jane showed me a letter she had just received, a classic Angry Lawyer Letter from an attorney in Iowa. This lawyer accused Jane of copyright infringement of a quilt design, and the he proceeded to recite chapter and verse of the parade of horrors that could befall someone committing such a heinous act: statutory damages of up to $150,000 per act of infringement, seizure and destruction of the infringing goods, a levy of attorney’s fees and court costs expended, disgorgement of profits, etc., and so on.
I consider myself a skillful writer of dramatic and scary Angry Lawyer Letters. This was a good one. You’d have thought someone had ripped off “Gone With the Wind” or something. And all things considered, it was absurd.
I quickly responded to the letter. I patiently explained the facts to my colleague in Iowa. I told him about the traditional block, attached some excerpts from quilting books, and invited him to investigate the matter himself. I also noted that, hypothetically, even if my client had borrowed some of his client’s original ideas (which she hadn’t), that borrowing was a fundamental aspect of quilting. This is how folk art becomes folk art, for crying out loud. With what I hoped came off as a finely modulated and restrained tone of righteous indignation, I observed that it was sad indeed that a folk art like quilting, based on the sharing of ideas and a communal ethos, should come to this, histrionic bickering and bullying by attorneys.
I figured that would end matters, but alas, such was not the case. About a week later, another letter arrived from the Iowa lawyer. He turned his wrath from Jane to me, reiterating his view of things (and ignoring my explanation), and including, in a most condescending manner, a short primer on basic copyright law. He also made the preposterous claim that the block was the original creation of his client. Meantime he was barking up the magazine’s tree as well, and I was getting increasingly anxious calls from the magazine’s attorneys.
If the guy weren’t so far away, I would have driven to his office and slapped him. In hindsight, I suppose he was just doing his job, but this was starting to feel like a shakedown. I slammed off a flaming letter, telling the lawyer to re-read my first letter (and to try to comprehend it this time) and demanding that he provide me with proof of his client’s copyright registration with the Library of Congress (if the Midwest quilter hadn’t secured a registration prior to Jane’s alleged infringement, she couldn’t sue for statutory damages or attorney’s fees). I also encouraged him to go ahead and sue. (I refrained from using the phrase “go ahead, punk, make my day” but the meaning was the same) And I never heard from him again. Neither did the magazine.
If he had sued, we would have had an interesting little case on our hands. Say the facts turned out that Jane had liberally borrowed from the Iowan’s quilt, and that the quilt block was indeed "original." Jane may well have been found liable based on copyright infringement. She saw an original creative work and copied it. That is infringement. End of story.
And if every quilter (or even a lot of them) had a similar Machiavellian streak and a bull-headed lawyer, quilting as we know it would come to a grinding halt. Because the essence of quilting is copying, but there’s no folk art exception in the copyright law.
Interestingly, several months after this, a feature article ran in the National Law Journal about some lawsuits involving quilts. There have been several cases in which quilters have claimed copyrights in combinations of traditional blocks, and the choices of color and fabric in the quilts. And these quilters are enforcing their copyrights in court.
But the quilters aren’t going after other quilters. Rather, these cases involve large chain stores that buy a handmade quilt and then have cheap knock-offs made in foreign sweatshops. The quilters have been winning. In one of the cases, a quilter succeeded in being awarded all of the profits that the chain store made on the design and had the store’s remaining inventory of quilts distributed for free to homeless shelters. You can’t beat that.
So Jane doesn’t have to worry about this oversensitive dweeb in Iowa. I don’t think I ever told her, though, that if the photographer of the quilt photo she posted on her website ever came looking for her, we’d have a real copyright problem on our hands.
© 2003 Paul C. Rapp
Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions
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?
Angel Policies |
Contributory Infringement |
Copyright Extortion |
Copyright Misuse Doctrine |
The Digital Millennium Copyright Act
EULA | Fair Use | First Sale Doctrine | Product Description | Registration | Registration Denied | What is a Copyright? | What is not Copyrightable?
Embroidery Designs |
FAQs & Whines |
Image and Text Theft |
Licensed Fabric |
Licensing & Licenses |
Patterns Index |
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