[an error occurred while processing this directive] [an error occurred while processing this directive]
Source:
McCall's Quilting Magazine Sept/Oct 2010 Issue, pages 54 - 55.

August 18, 2010 - Content has not been altered except to add numbers to the paragrapd (in red) for reference.
This article has been re-formatted from the magazine multi-columns format into a single column format.
This artice appears in the McCall's Quilting Magazine, Sept/Oct 2010 Issue, pages 54 - 55. Here we will go through this error-laden article by paragraph.

Know Your Rights (and Wrongs)

¶ 1
A Copyright Primer for Quilters
By Janet Jo Smith, B.A., J.D.

¶ 2
As quilters, we can be inspired by a beautiful painting, a special photograph, or a quilt we see in a magazine. We want to make a quilt that looks just like that, or a variation of it. May we? It depends. Copyright law is an integral part of the quilt world. Understand the rule of law, and its application, can help us avoid embarrassing situations.

¶ 3
There is one rule of copyright. Only the copyright owner (initially the person who created the quilt designer) has the right to do any of the following:

¶ 4

  • Make copies in any medium, including photographs of the work.




    ¶ 5

  • Make a derivative work. There is no particular amount of change that will make the new work acceptable. If it is a variation of the original, inspired by the original, it is derivative.



    ¶ 6

  • Display a work publicly or publish it. For the purposes of copyright, public display means to put it in a place where a substantial number of persons, not family or social acquaintances, will see it.

    ¶ 7

  • Distribute copies of a work by giving or selling them. The exception is if you own a legally created copy, you may sell or give it away without the designer's permission. This is called the “first sale” doctrine. However, ownership does not give the right to make copies, derivatives, or to display or publish the work.

    ¶ 8
    Like all good rules of law, there are exceptions. First and foremost, get permission from the copyright holder to copy, make a derivative design, or show the work publicly. You can get express permission by asking for it. Or, in the case of published patterns, there is an implied permission to make a copy for personal use. Second, there is a very limited exception in the statutes called Fair Use that exempts non-profit schools and colleges, libraries, scholars, and researchers, as well as publishers of commentary or critique, under particular circumstances. Finally, the design may be in the public domain. While the length of copyright protection has changed many times over the years, it currently exists for the life of the creator plus 70 years. Once in the public domain, the work can be used by anyone for any purpose.

    ¶ 9
    The following are questions that frequently arise for quilters concerned about copyright.

    Q: Can I enter a quilt I made from a McCall's Quilting (or other magazine) pattern in a quilt show?

    ¶ 10
    A: A quilt show is a public display and therefore only the designer can enter the quilt. However, you can ask permission for the display. If the design came from a contributor to magazine, the editors will be able to help you contact her. If a staff member at the magazine created the design, it is a “work made for hire” and the magazine owns or shares the copyright and should be approached for permission.

    Q: Can I sell a quilt made from a magazine pattern?

    ¶ 11
    A: Yes. When you purchased the magazine you received an implied permission to make a copy. Under the “first sale” doctrine, once the copyright owner sells a pattern, you can make a legal copy and may transfer ownership without asking permission.

    Q: Can I teach a class using a quilt pattern that was featured in a magazine?

    ¶ 12
    A: Yes, but only if each student purchases a copy of the magazine containing that pattern. Your role in teaching would be to show your students the various techniques required and to share your expertise and experience. Since techniques are not protected by copyright, you would be free to teach them. However, since each student is going to make a copy of the patterned quilt, each of them needs to get implied permission by purchasing the magazine. This is also true for books and single patterns.

    Q: Can I copy a magazine quilt pattern to share with my friends?

    ¶ 13
    A: Not without permission. You can make a copy for personal use, and often need to in order to use the templates or appliqué designs. However, you cannot give or sell copies to others. Contact the magazine and they will help you contact the designer. You will also need the magazine's permission since they hold a copyright on the pages of the magazine. Keep in mind also that not only photocopies, but also hand drawn or written copies are prohibited.

    Q: If we're making our guild raffle quilt from a magazine quilt pattern, can I photocopy the pattern for our quilt members?

    ¶ 14
    A: The same rules apply to guilds and other non-profit groups as apply to individuals. You must have both the designer's and the magazine's permission to copy pages of the pattern. You also need the designer's permission to use the quilt for a raffle. Even if the raffle is for charity, it is subject to copyright law. A raffle quilt is usually put on public display to sell tickets. That requires permission. It is also a commercial endeavor since you are obtaining money for the tickets. Always get permission.

    Q: Do all of these answers apply to patterns and quilts seen on a website?

    ¶ 15
    A: Absolutely! The courts have consistently held that putting something on the internet is no different from publishing it in print. Unless a website specifically says that you may copy for free, you cannot download or print the material. Another issue with the internet is people posting photographs on their blog sites. If a photo shows a quilt that is protected by copyright, the photo is a copy and putting it on the site is publishing. Both require the designer's permission.

    Q: What steps should I take if I see a copyright infringement at a quilt show?

    ¶ 16
    A: First, don't assume that because you see a copy quilt that it is an infringement. Again, if the maker has the permission to make the quilt and to display it, it is ok. You may want to speak to the organizer of the show to ask if they are aware that it is a copy quilt. They can be held liable for the public display along with the maker.

    ¶ 17
    The information provided here is general and not meant to provide specific legal advice. For information about a particular situation, consult with an attorney.

    ¶ 18
    Janet Jo Smith ia an author, attorney and quiltmaker who lives in the foothills near Denver, Colorado. Visit her website, dyesmithy.com, for information on classes and guild programs. Ger hand-dyed fabrics and other items are available at etsy.com.

    Article is Copyright © 2010 New Track Media

  •  
    Rebuttal

    Some paragraphs and parts of same are accurate. We reference those parts that are not by highlighting them in the article.

    ¶ 1
    Janet Jo Smith claims she is an attorney however the Colorado Bar Association does not list her as an attorney. Of the 17 "J Smiths" listed by the Colorado Bar, her name does not appear. Why would an attorney NOT be a member of the Bar? The Colorado Supreme Court lists her as being "Active" but not in "Private Practice". But we cannot find a law firm that lists her as an attorney in their employ. And she does not carry "Professional Liability Insurance". What gives here? And what is her bias on the pattern use issue?




    ¶ 3
    There is far more than one rule of copyright. The reserved rights of the copyright owner have a number statutory limitations that Janet Jo Smith generally ignores.

    The picture of a woman in jail
    The picture of the crafter in prison is very misleading. Civil violations do not result in jail time, only criminal violations. A criminal violation is prosecuted by the federal government. Any person involved in criminal copyright infringement will not be reading this magazine. It was a poor choice of artwork but we feel it was deliberately selected to put fear into the minds of innocent users.

    ¶ 4
    The problem with this statement is the all-inclusiveness that does not exist. And this "definition" is used as a set-up for later claims that are false. The right to make copies applies to the work that is actually covered by the copyright, and that is in this case, the original quilt and/or pattern. If a copy of the quilt is sold to you, the copy is yours and you have a right to display that copy and to take pictures of that copy. If a copy of the pattern is sold to you, the quilt you make from the pattern is yours as if you bought the quilt with the same right of display and pictures as well as the right to sell that copy you made from the pattern you purchased.

    Imagine that you have purchased a dress pattern from McCall's. You make the dress from the pattern and then wear the dress to a fundraiser for a local charity. A newspaper photographer takes a picture of you wearing the dress and the picture is in the next day's edition under local news. According to Janet Jo Smith, you are now guilty of several counts of copyright infringement and so is the newspaper. Please. Get real. Or how about your Aunt Millie uses a Simplicity pattern to make an apron that she wears to a family reunion where there are over 100 people. She poses in a lot of family-related pictures still wearing the apron. According to Janet Jo Smith Aunt Millie is a criminal? Really? Does that even sound reasonable?

    ¶ 5
    This is an incorrect description of a derivative. The copyrighted work must be recast or transformed into something original and be copyrightable itself. A copyright often does not extend to all aspects of a work. Many elements of a copyrighted work can be deemed to be unprotectable. One example would be a quilt depicting the alphabet. An author cannot create an alphabet quilt and then deny all others from doing the same. There are many ways to express the alphabet on a quilt. If the works are substantially similar and a reasonable observer would conclude that one expression was substantially similar and was copied from the other, that would be infringement under copyright law.

    ¶ 6
    Factual within the limitations we have already discussed.

    ¶ 7
    This paragraph reiterates her misleading definitions and claims. Her approach appears to be that if you repeat the lie often enough then people will believe it. It works for socialist politicians so why not for pseudo-lawyers? By her definitions, a copy in "any medium" includes what one makes from the pattern. The problem with her definition is that the US Supreme Court stated in 1879 [paragraph 18] that dresses made from a pattern are not covered by any copyright the pattern may hold. And her claim that ownership does not give one the right to make copies is accurate until she tries to apply that statement that to the making of items from the pattern and then it fails because items made from patterns are not copies or derivatives.

    ¶ 8
    Back to repeating the lies. Getting permission, under copyright law, requires permission to be in writing, such as through a contract, not verbal and not through an email. A required conveyance is a "document effecting a property transfer" and is not done casually. And, as previously stated, if you have lawfully acquired the pattern then what you make from it is yours to do with as you wish (barring misrepresentation, etc.) Once the copyright holder has released the pattern into commerce, the copyright holder loses control over the use of the pattern.

    There is no "implied permission" when one purchases a pattern. Making something from the pattern is absolutely granted upon one acquiring lawful possession of the pattern. The Ford Motor Company does not give you "implied permission" to drive one of its vehicles once you have bought it. Betty Crocker does not give you "implied permission" to make brownies from one of her mixes. Imagine a book publisher stating that you can only read the book once and then you must dispose of it? Once you have paid the manufacturer their asking price, it is yours. What elevated pattern designers to a god-like status? Their own arrogance and their deliberate misapplication of copyright law? And the term "for personal use" is garbage. Without a written contract stating otherwise, a copyright owner cannot impose use restrictions upon their product by simply printing them on the item or claiming them later. See Bobbs-Merril vs Straus, US Supreme Court, 210 U.S. 339 (1908).





    ¶ 10
    See ¶ 4 and ¶ 8 above. Permission is not required. However, claiming the work as original to you would be asking for big trouble. The public display aspect of the designer's exclusive rights does not apply to a lawfully acquired copy or from one made from the pattern. Imagine that you purchased a painting for some large amount of money and you then hung that painting in the lobby of your business and then you were cited for copyright infringement for an unauthorized public display? The artist sold you the painting and upon doing so, lost the exclusive right of public display. Does that make sense? Once purchased, the designer forfeits control absent a written contract.


    ¶ 11
    Finally, Janet Jo Smith stops skirting the issue and makes the claim that making something from a pattern is making "a copy" under copyright law. She lies. When you purchase the pattern, assuming the pattern has been copyrighted and most patterns are not registered with the copyright office, copyright law would only cover the pattern you purchased, not what you make from the pattern. This is one of the really big lies upon which pattern designers base their claims. The statement here, in ¶ 11, directly contradicts her statements in ¶ 7 concerning making and selling copies. And notice her use of the singular "copy" when the purchaser of the pattern has the right to make more than one item to sell. She is attempting to impose the imaginary "one copy" rule on those who purchase patterns.

    The problem that Janet Jo Smith encounters, as do pattern designers, is that their fuzzy logic soon begins to contradict itself. This happens when one group start telling too many lies in order to justify their position. You will notice no such contradictions in the rebuttal logic we present. Our position is consistent. And we quote statutes and case law to support what we claim.

    The fact that McCall's Patterns has some 108 copyright registrations but there is not one of McCall's individual clothing patterns registered should be an indicator. A clothing garment constitutes a ''useful article'' under copyright law and therefore cannot be copyrighted. If it cannot be copyrighted then it does don have copyright protection. A quilt is a useful item. The design on the quilt can qualify for copyright registration so what the pattern designer is really doing is selling the design and not the quilt. They have sold you the design to be used on the quilt and without a signed agreement stating otherwise, that design is yours to use for personal or commercial use (within limited misrepresentation limits).


    ¶ 12
    She again lightly touches the "copying" subject by using the singular "copy" when "copies" is more proper. Having each student purchase a copy of the pattern, or the magazine, is correct.


    ¶ 13
    Janet Jo Smith starts off correctly but gets bogged down with another contradiction. The magazine cannot lawfully copyright the work of someone else. The periodical copyright on the magazine covers the protectible elements of the issue but not the registered or unregistered work of another party. Generally, magazines and other publications acquire limited publication rights. The rights acquired by the publication are no greater than those owned by the pattern designer. When the magazine sells you the issue, all patterns in it are lawfully acquired by you and can be used by you without any further permission. Imagine buying a book of recipes and not being able to use a recipe for chocolate chip cookies to sell at a bake sale without first getting permission from the author. Does that make sense? And then, Janet Jo Smith says you need permission from the publisher as well? Really?




    ¶ 14
    Copying the pattern to sell or to give away would be considered infringement. While it is unlikely the pattern designer could get a copyright registration on the pattern, it is best not to engage in this activity.

    But again Janet Jo Smith gets lost in her misinterpretations. If the guild has purchased a pattern and makes a quilt from that pattern, no permission is required from the pattern designer. As we covered in ¶ 13, the magazine has no proprietary rights to the pattern. She keeps repeating the pattern designer mantra in hopes that the flock will follow. Baaaaaah!




    ¶ 15
    While the courts have held that publishing on a web site is similar to publishing in print, the same copyright rules apply. Consider this: why would a web site publish a pattern and then say you cannot use it? It is there, for all to see, and easily copy, but you cannot use it? Then why post it on the internet? People post things on the internet for others to see and use. Only an idiot would post a pattern and tell people they cannot use it.

    She then repeats the conundrum about public display. You bought the pattern, you made the quilt, you have a right to publicly display that quilt. And why would you not be able to show it to friends and family and others? By her logic, if someone's granddaughter colored a page from a coloring book of the Disney Princesses and grandma then tacked that colored page to the refrigerator, she is now guilty of copyright infringement because grandma did not get permission from Disney to publicly display the copyrighted coloring book page. Right.




    ¶ 16
    And who appointed her Chief Of Copyright Police? As she states, you do not know the facts nor are you affected. Getting involved as she suggests leaves you open to all sorts of grief especially if there is no infringement and you hint that there is. Her previous advice is so pathetically wrong so why would one take it now.



    ¶ 17
    General? The advice seemed awfully specific to us.


    ¶ 18
    Janet Jo Smith claims she is an attorney however the Colorado Bar Association does not list her as an attorney. We cannot find a law firm that lists her as an attorney in their employ. Perhaps she has attended law school and perhaps she once was a licensed attorney but that does not mean she has an intimate knowledge of copyright law and its application. Considering her self-serving misinterpretation of copyright law we can see why she is not making a living as an attorney.

    She is a quilter. We are guessing her bias is that she designs and make patterns. Her web site, www.dyesmithy.com/, mentions that she is an attorney but provides little else about her qualifications. Like other designers, she reads and interprets the law to fit her beliefs and her desires. She is wrong: dead wrong.


    Links to the other articles in this series:

    People Are Talking - from the Author

    People Are Talking - from the Editors

    [an error occurred while processing this directive] [an error occurred while processing this directive] [an error occurred while processing this directive] [an error occurred while processing this directive] [an error occurred while processing this directive]

     

      [an error occurred while processing this directive] [an error occurred while processing this directive]