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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:
McCall's Quilting Magazine Novt/Dec 2010 Issue, page 46.

November 24, 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 is the right column only.

From the Author

People Are Talking

From the Author

¶ 1
Public Domain Many elements used in quilting (traditional block patterns, settings, etc.) are in the public domain. These classic elements of design can be used by anyone without seeking permission from anyone else. But when you combine blocks, borders and sashes to create a quilt out of your own imagination, whether those elements were traditional or new, that is your original design, protected by copyright. The blocks that were in the public domain remain so, but your overall design may be protected. If someone copies your design without permission, they violate your copyright.

¶ 2
So, your design is protected and you exhibit it or publish a pattern. Someone else won't be able to make a copy and claim the design as their own, or publish a pattern of the same design and benefit from your creative efforts. But what if a pattern is made entirely of public domain elements in a common setting? Often the designer of such a pattern isn't claiming copyright of the design, but the pattern instructions themselves. If that is the case, you may make, display or distribute as many copies of the quilt as you wish, without permission.

¶ 3
Charitable Quilting As the buyer of a magazine, you may use the patterns to make a copy of each quilt. You may give your quilt(s) to a charity to use for a raffle, but the charity should get permission from the designer for its use, since the quilt will likely be on public display and will be raising funds. Magazine and book publishers aid quilters in getting these permissions every day. It akes just a few moments to ask for permission, and rarely does a publication or designer refuse. Contact information is available in every publication. While it may seem like a hassle, it is a courtesy any quilt designer would appreciate.




¶ 4
Public Display The legal injunction against public display of a copy of a protected work excludes family and friends. Our guild members and our neighbors are our friends, so Show and Tell or casual, everyday display is not a problem. Showing a quilt at a county fair or guild show is such a common practice that it wouldn't be surprising if a claim of implied permission was upheld by a court of law. But implied permission for public display has not been tested. If you're at all unsure about the legality of a planned public display, it's best to ask for permission.


¶ 5
Keep in mind that for any of these questions that have never been presented to a court, there are no concrete answers, only the best interpretation that lawyers can determine based upon the statutory language. Copyright was best summed up by the U.S. Supreme Court when they paraphrased the Golden Rule: "take not from others to such an extent and in such a manner that you would be resentful if they so took from you".

¶ 6
Janet Jo Smith, B.A., J.D.





Article is Copyright © 2010 New Track Media

 
Rebuttal

To read the original article, "Know Your Rights (and Wrongs)", with our rebuttal, click here.

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 sets the tone of this trash by establishing early her main topic: permission. She then wanders off the reservation and spouts the usual misconceptions about copyrights. When a work is fixed, in this example that would be making a quilt, if the work is original, it has copyright protection. However, this protection can only be realized by the artist first getting the work registered with the copyright office and then being willing to take the alleged infringer into federal court. The first step presently takes about one year and the second can take two or three years. Neither step is a guaranteed winner. She really does not do a very good job of explaining public domain because she mixes the topic with a discussion of originality that leaves both subjects lacking.


¶ 2
She starts off repeating some established rules of copyright. But then she steps in it again. Pattern instructions generally cannot be copyrighted because they are considered a "procedure or process" and are excluded by copyright law. Imagine that someone were to receive a copyright registration for instructions on how to make a shirt. They could then prevent all other designers from making and selling patterns for making shirts. To infer that a designer could get a copyright registration of a set of instructions in this manner is an inexcusable example that distorts the scope of copyrights and creates a false impression that will be spread to others.


¶ 3
In the first sentence Janet Jo Smith attempts to set the tone for her distortion of the facts. First is the use of the singular "copy" when in fact the plural "copies" is more accurate. She is trying to establish in the mind of the reader that the owner of the magazine is somehow limited to only making one item per pattern from the magazine that the reader has purchased. First, assuming the pattern is copyrightable and generally patterns are not, the US Supreme Court stated in 1879 [paragraph 18] that [items] made from a pattern are not covered by any copyright the pattern may hold. Therefore a copyright owner cannot limit how many items you make using the pattern you have purchased.

Her second sentence implies that the item made from the pattern cannot be sold but rather may be donated to a charitable cause. Since we have established that the copyright owner lacks the authority to limit how many items can be made from the pattern, from where would that same copyright owner have the authority to tell you that you cannot sell items made from the pattern? Nowhere.

Again, she refers back to her pet concept of asking for permission. Asking for permission for a public display is not required under copyright law. If you purchase or otherwise lawfully acquire a quilt, you are "entitled, without the authority of the copyright owner, to display that copy publicly" (see 17 U.S.C. 109). If you make a quilt from a pattern you have purchased, that copy (quilt) is lawfully yours and subject to the above copyright law provision.

¶ 4
Under Public Display she contradicts claims she has made earlier about one needing permission. Instead of flatly stating that you must have permission, as she did at least five times in the first article, Know Your Rights (and Wrongs), she skirts the subject by discussing implied license and the courts. And while she is correct that there is no federal court case that has gone to trial concerning implied permission for public display, there is probably a good reason for it. It would be a losing case for the copyright owner. Implied permission, also called implied license and sometimes nonexclusive license, can be expressed verbally or through actions. When one places a pattern on the market, that action expects the buyer to use the pattern to make something. The end product, in this case a quilt, was made of materials purchased, cut and sewn by the buyer. The end product belongs to the buyer. Any theoretical control that the pattern designer had was lost when the pattern was sold. Public display of an item belonging to the buyer is not infringement.

¶ 5
While there may not be "concrete answers" as claimed by our pseudo-attorney, the misconceptions floating about in the quilting and sewing world are generally the product of self-serving "experts" like Janet Jo Smith, who gleen what they like from the copyright laws and make pronouncements as though they were the law. Many pattern designers gloom onto the "exclusive rights" of copyright owners while ignoring the exclusions to those "exclusive rights" because the exclusions do not fit their needs. Corporate lawyers are paid to interpret statutes in favor of the clients who are paying them. That is why we quote statutes and court decisions. FYI to Janet - the passage you quote was made by Joseph McDonald, not the U.S. Supreme Court.

¶ 6
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:

Know Your Rights (and Wrongs)

People Are Talking - from the Editors

General
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eBay - Land The Game

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Parallel Imports   |   Post-sale Confusion   |   Puffery   |   Secondary Meaning   |   Subsequent Confusion   |   Trademark Abuse
Unauthorized Use   |   Unfair Competition   |   What is a Trademark?
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Other Issues
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Selvage   |   Stanford School of Law Case Outline   |   Tabberone Disclaimer   |   Trademark Extortion   |   Urban Myths   |   What To Do If You Are Veroed

Federal Court Cases
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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

Federal Lawsuits
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Setting Up | Standing. | Joinder of Parties. | The Complaint | Their Answer | Default Judgment
F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Your Reply | Summary Judgment Motion | Affidavits | Time Extension

Defending Against A Federal Lawsuit
The Complaint | Your Answer | Denials | F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Affidavits | Time Extension

VeRO (Verified Right's Owner Program)
VeRO Commandments | VeRO-Verified Rights Owners Program | Counter Notice Letter
Counter Notice (pre-2003) | Counter Notice present | On-Line Survey from 2004 | Articles about VeRO | What To Do If You Are Veroed

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