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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.
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