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The National NeedleArts Association Hall Of Shame Member This Page Added Februuary 7, 2010 While Lying About Copyright

You will note that there are a lot of pundits who will tell you what you can and cannot do with patterns,   licensed fabrics,   embroidered images,   pictures of products, and descriptions, but none can point you to specific court cases or federal law that supports their claims. The National NeedleArts Association is one of those organizations that under color of authority, representing their members and the industry, they lie about copyrights because it suits their agenda.

We are predisposed to see lies and deceit especially when we are putting together a web page about lies and deceit. Why would the The National NeedleArts Association, or the TNNA as their friends call them, why would they find it necessary to lie about copyrights? Ah. As we mentioned, it is part of their agenda. The more people who tell a lie, the more that will believe the lie. And, to add validity to the lie, TNNA freely distributes a flashy looking brochure that immortalizes the lie in print for the disbelievers.

And what are the lies, or the Big One? The Big One because it is a collection of mischaracterizations bundled into one Big Lie. Their brochure is available on-line (free) or click here so you can read along with us as we go through the brochure. The brochure begins with the title: "Don't Copy Wrong ... Respect Copyright!". The first clue there something amiss is the subtitle, "Copyright is about respecting the rights of creators". No, it is not. Copyright is about affording authors and artists the opportunity to profit from their ideas, within certain defined legal boundaries, and then allowing those ideas to become public domain. Page 2 of the brochure is fairly straight forward and accurate.

TNNA Brochure

Our Comments

If it exists in a tangible form, it’s copyrighted. According to existing copyright law, a work is considered copyrighted the “minute it’s created and fixed in a tangible form so that it is perceptible either directly or with the aid of a machine or device.” (www.copyright.gove/faq.html#q1) Even if a pattern or design is not registered with the government, it is still considered to be copyrighted if it satisfies the legal requirements. Registering a copyright simply ensures that the facts are on public record. When registering, the designer will receive a copyright certificate. In the case of litigation, registration of a copyright may become valuable evidence and enable the designer to collect statutory damages and attorney’s fees. In order to qualify, the non-functional elements of the product (such as the stitch pattern or visual design) • must be original — but not necessarily novel • must be capable of existing independently of the functional aspects Copyright covers: • the written pattern as if it were a literary work (written down) • non-functional design elements such as combinations of stitch patterns and original visual art (color work, texture, etc.)

The work has "copyright" when it is fixed in a tangible form giving the author certain rights under the law. The enforcement of those rights requires that the work be registered.   Registering a copyright is more than making sure it is public record. All enforceable rights under federal copyright law begin with registration which can take six months to receive. Any claimed infringement prior to registration is subject to limited damages and no award of attorney fees. Without statutory damages and legal fees, it is impractical for most copyright owners to pursue court actions to enforce their rights.   Patterns are not generally copyrightable. Period. The Supreme Court stated in Baker v Selden, "[The pattern's] practical use could only be exemplified in cloth on the tailor's board and under his shears; in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms. Surely the exclusive right to this practical use was not reserved to the publisher by his copyright of the chart." And, according to the Register of Copyrights, in a 1995 letter: "The patterns you submitted are not technical drawings, diagrams, or models, nor do they portray the appearance of the objects manufactured. They are the outlines of the component parts used in the manufacture of products. They are intrinsically utilitarian and functional, and thus are not eligible for copyright protection."

The written pattern instructions generally do not qualify for copyright because they are for "the application of a mechanical operation" and as such fall outside copyright law (see above, Baker v Selden). Likewise, stitch patterns generally do not qualify for copyright because they are "intrinsically utilitarian and functional" (see above The Register of Copyrights). As for the non-functional aspects of an item, the artwork or design would have to be so novel and used in such a manner as to make the final product virtually a "collectible" or unique item. And that would only be applicable to the finished product and not to the pattern. So no matter how distinctive and creative the final product might be, it would not apply to the pattern which inherently lacks that quality. The pattern lacks any separable non-functional design elements. Clothing for the most part cannot be copyrighted. In Galiano v Harrah's, 416 F.3d 411 (5th Cir 2005), the court of appeals stated:

...dress designs, which graphically set forth the shape, style, cut, and dimensions for converting fabric into a finished dress or other clothing garment, generally do not have artistic elements that can be separated from the utilitarian use of the garment, and therefore typically do not qualify for copyright protection.

Designers, be they dress designers, knitting designers, embroidery designs, all want to believe they have absolute copyright control over their designs from the moment they are created through eternity. It just is not so. It is necessary to deal with what the law says and not what we would like it to say. And contrary to the assertions of lawyers, the law is not constantly changing to the point where one does not know their rights from one day to another. Courts prefer to follow precedent, that is, previous court rulings, unless there has been a major change in the statutes. Courts do not routinely change their minds about the application of the law as many pundits claim.

As we stated, we quote case law and court decisions to back our claims. There is a large community of "artists" who believe, or pretend to believe, that they have the right to control what is done with their work after they sell it or give it to someone. That is not true. Under the First Sale Doctrine, the manufacturer loses their rights to control the use and resale of a product once they have released that product into the steam of commerce. The purchaser of the product does not have the right to duplicate the product and then resell it under the manufacturers trademark. And, if the item is copyrighted, the purchaser does not have the right to make copies to sell or to give away. On to page 6 of the brochure.

TNNA Brochure

Our Comments

How do I know I’m infringing? The reproduction of any materials without written consent of the author or designer, constitutes copyright infringement. This applies to: • photocopying from books or magazines • printing a pattern on company (or store) stationery as if it belongs to the company • on the internet copying (or inputting or scanning) patterns which have not been explicitly designated as belonging in the public domain passing patterns around the internet through chat groups and mailing lists Remember Ownership of a work does not imply ownership of copyright. It’s always best to assume that just about every pattern is copyrighted whether or not noted as such. Although necessary prior to 1989, copyright notice (©) is not required by current law. Although copyright is covered under civil law, violations involving more than 10 copies and valued over $2500 are considered now a felony in the U.S.

Not true. Copyright law specifically allows for the duplication of some copyrighted material for personal use. The copyright of a pattern in a magazine belongs to the magazine because it is the magazine that has obtained the copyright on the periodical. It is assumed the pattern designer granted permission for the work to be printed but that does not alter the fact that designs are not protected by copyright. Therefore, any pattern published or posted on the internet is automatically in public domain and may be used freely by any one. Ownership of a work never implies ownership of copyright. However if the work is not copyrightable then that is not an issue. Few patterns are actually copyrighted. Simplicity for example, has only a handful of copyrights on patterns (for soft sculpture) while Simplicity does copyright the pattern envelope designs. Felony copyright infringement generally includes organized duplication and distribution of copyrighted material, usually motion pictures and sound recordings. The feds are not coming after the crafters.

Page 7 of the brochure makes the absurd statement:

The concept of "fair use" applies to the reproduction of a piece if: • it is utilized for personal, non-profit, or educational purposes WITH WRITTEN PERMISSION OF THE PUBLISHER;

Nothing in copyright law, under fair use (17 U.S.C. § 107 Fair use) states that written permission is required. This is where the many "artists" gloom onto the idea that they can limit how their work is used once they have sold it. There is nothing in § 107 about "personal, non-profit, or educational purposes" as presented. This is being presented out of context. § 107 covers examples of fair use as being copies made "for purposes such as criticism, comment, news reporting, teaching", etc., and then goes into the four factors of what determines fair use should the courts have to make a decision, all of which are distorted by brochure to fit the agenda of TNNA. Another major distortion is the claim about fair use

"it does not affect the potential market for or value of the work."

What 17 U.S.C. § 107 actually states is:

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Not the same thing. But the version from TNNA fits their agenda better than does the truth. The portion (4) of "fair use" is presented out of context and is but one of four factors for the courts to use when looking at fair use. The brochure finally ends with a list of credits that are designed to make it look official and accurate. It is not. It is a deliberate and self-serving distortion of copyright rights. The National NeedleArts Association has been added to these pages for spreading the manure.