Monday, February 18, 2008

On Copyright

Designer Series, Part 1

So, as many of us are painfully aware, there has been quite the, shall we say, "discussion "proceeding over copyright and it's application to kntting patterns and designers. Thread after thread has been started, flames ensued, cool- and hot-headed types both weighed in with varying clarity and success. But nobody seems to come to any type of reliably-referenced or well-founded answer to the questions floating around about just how much control a pattern writer or designer has over their pattern, and whether or not it's legitimate for another person to imitate their finished item.

It was getting so this really bothered me . . . partly because I prefer to find the basic principles behind a problem, partly because I wasn't willing to jump in and provide another target for the hotheaded participants, and partly because I'm also one who holds copyright to patterns. So, I've done some reading, delved into the US Copyright law, and here's what I've found.

There are two elements to this issue. First, how copyright applies to the pattern itself, and secondly, how it applies to the item which can be produced from it. This applies equally to knitted, crocheted, and sewn items. I've mostly used knitting in my examples, but that's only for brevity and clarity. I also crochet and sew . . . so don't fear I'm knitter-centric. ;o)

How exactly does copyright apply to patterns?

First, patterns are copyrighted just as any other written thing is copyrighted, whether it’s poetry or this article. Here’s what title 106 of US Copyright law has to say:

§ 106. Exclusive rights in copyrighted works38

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

There is some debate as to whether knitting from the pattern constitutes creating a derivative work—but whether or not it does, a pattern is written with the intent to allow others to reproduce that the author has already created, and therefore grants an implied license to the pattern recipient to do so. In addition, the existence of the pattern itself sends a clear message that the designer wishes her original to be duplicated, and allows pattern recipients the ability to do so.

Next, how does copyright apply to the finished item?

Here’s Title 102 of the US law:

§ 102. Subject matter of copyright: In general28

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The discussion I've seen maintains that knitted items (soakers, hats, etc) are covered under item 5 above, and cannot be imitated once they've been seen by other knitters, for that constitutes both copyright infringement and the making of a derivative work. Under the definition for line item 5, it lists works of applied craftsmanship as a type of "pictorial, graphic and sculptural" work, which has been cited by pattern writers as protecting the finished item. But that's not all that the definition says. Here it is in full:

“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” (Emphasis added.)

Unless the art can be identified separately from the useful aspects of your soaker, then what you’ve knitted is not copyright protected under the law above. It is a utilitarian item with some great features, and therefore not covered under copyright.

Here is further discussion on the topic from WikiPedia:

Useful articles

If a pictorial, graphic or sculptural work is a useful article, it is copyrighted only if its aesthetic features are separable from its utilitarian features. A useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. They must be separable from the functional aspect to be copyrighted. [1]

There are two primary approaches to the separability issue: physical separability and conceptual separability. Physical separability is the ability to take the aesthetic thing away from the functional thing. Conceptual separability can be found in several different ways. It may be present if the useful article is also shown to be appreciated for its aesthetic appeal or by the design approach, which is the idea that separability is only available if the designer is able to make the aesthetic choices that are unaffected by the functional considerations. A question may also be asked of whether an individual would think of the aesthetic aspects of the work being separate from the functional aspects.

There are several different tests available for conceptual separability. The first, the Primary Use test, asks how is the thing primarily used: art or function? The second, the Marketable as Art test, asks can the article be sold as art, whether functional or not. This test does not have much backing, as almost anything can be sold as art. The third test, Temporal Displacement, asks could an individual conceptualize the article as art without conceptualizing functionality at the same time. Finally, the Denicola test says that copyrightability should ultimately depend on the extent to which the work reflects the artistic expression inhibited by functional consideration. If something came to have a pleasing shape because there were functional considerations, the artistic aspect was constrained by those concerns.

And, lastly, here is the official story from the Fact Sheets at the US Government Copyright website:

Designs for useful articles, such as vehicular bodies, wearing apparel, household appliances, and the like are not protected by copyright. However, the design of a useful article is subject to copyright protection to the degree that its pictorial, graphic, or sculptural features can be identified as existing independently of the utilitarian object in which they are embodied.

The line between uncopyrightable works of industrial design and copyrightable works of applied art is not always clear. A two-dimensional painting, drawing, or other graphic work is still identifiable when it is printed on or applied to useful articles such as textile fabrics, wallpaper, containers, and the like. On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the copyright law does not afford it protection. The designs of some useful objects may be entitled to protection under design patent law administered by the U.S. Patent and Trademark Office. Write to Commissioner of Patents and Trademarks, U.S. Patent and Trademark Office, P. O. Box 1450, Alexandria, VA 22313-1450 or call the Patent and Trademark help line at (800) 786-9199 or (571) 272-1000 (tty: (571) 272-9950). For the Trademark Assistance Center, call (800) 786-9199. Information is available at

Designs separately identifiable from useful articles may be registered on Form VA.

FL-103, Revised July 2006

Long story short, the law above is very plain. Here is the wrap up:

  • Patterns are covered by copyright, just as any other written work.
  • The knitted items produced from those patterns are not copyrighted so long as they are useful. Apparel items specifically mentioned above, encompass soakers, longies, etc. They may be imitated by anyone who feels inclined to do so, which will provide opportunity for innovation and improvement on all aspects of that knitwear's design.
If you see an item that looks suspiciously like your pattern, there are a few possibilities:
  • Knitting, for most of us, is a very straightforward and simple craft. (Nicky Epstein and Barbara Walker are prime exceptions.) There are bound to be knitters who come up with the same solution to the same problem--even if it's picking the same stitch pattern from a treasury and making it into a hat in the same gauge. It was most likely a case of great minds thinking alike--not plagarism.
  • Someone saw the item you knitted, and imitated it. Perfectly fine. The last time I heard it wasn't okay to imitate something really great or appealing was on the playground. Imitation is the highest form of flattery, and if a community shuns it, they are damning nearly all progress, condemning the budding designers and would-be improvers to creating in a vacuum . . . repeating many of the same mistakes as their predecessors, wasting time and effort in doing so.
  • Someone downloaded/bought your pattern, and knitted something from it. So long as they're not selling your pattern (whether attributed to you or not), odds are it's legal. Very few of us have patents on our designs--and very few of us would be granted patents even if we were to apply for them. Even if the item knitted from your pattern is being offered for sale, it's still not copyright infringement. Copyright extends only to the sale of the written pattern itself--not the product of it.

I truly hope that no one reading this is seeing red by now. I've done my best to find the applicable law, and to try to provide access to it so anyone who is curious can see it for themselves. Quoted text, links, and all.

I'm expecting reactions--feedback, questions, and debate. But I am not expecting or welcoming flaming, name-calling, or any other such manner of behavior. If you have a concern or question about anything above, please do leave a comment or email me. I'm happy to post responses and explain things further. However, this is posted at my own blog, (as opposed to on a forum or an email list somewhere), because I don't wish to be attacked for providing transparency to a very muddy subject.

All the best,


Disclaimer: No part of this article is intended to be, nor may it be construed to be, legal advice.