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.” http://www.copyright.gov/title17/92chap1.html (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. http://www.copyright.gov/fls/fl103.html

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. http://en.wikipedia.org/wiki/Copyright#Useful_articles

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 www.uspto.gov.

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

FL-103, Revised July 2006 http://www.copyright.gov/fls/fl103.html

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,

Annalea

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

16 comments:

Shan said...

I won't say my eyes didn't glaze over occasionally while reading those excerpts, but the upshot of it is I agree with both you AND the copyright laws. I've never seen anything wrong with 'copying' a garment from looking at the finished piece - though there is plenty wrong with copying an actual, paper, pattern.

Annalea said...

Isn't that the worst about US laws? I've spent some time reading over B.C.'s Provincial laws, and they're SO much easier to parse. Plain English at its best. ;o)

Kathleen C. said...

I guess I'm still not sure about one of the points. Not because you didn't do your best to make it clear... more because the language seems to do it's best to make it obtuse.
But... I understand that a garment, such as a sock, is not copyrightable. But the aethestic choices can be?
So... a sock filled with a very ornate cable filled twisted stiches lace motifs (really over the top) design... Can that design can be copyrighted, but the concept of a sock (ribbing, body, heel, toe) not? Or is it not copyrightable at all because that design can not exist independently of the sock structure?

camillaknits said...

This was helpful, given that I sell Amy Butler's fabrics and patterns and am always worried when people tell me they're making bags to sell on Etsy or where ever. There is a clause in the pattern asking for her patterns not to be made for commercial sale, but it always struck me as odd. After you make one good bag, then what? Seems like we should all be paying royalties to whomever thought up "bags" in the first place... and God put them on kangaroos and in the cheeks of hamsters (oh,no, more inflamatory content!) Thanks, too, for your very calming comment about my Grandma. She's been "gone" so long. It was nice to have someone at my back. hugs, Cami

Annalea said...

Kathleen, the idea is that if you can remove the decorative/aesthetic element from the useful item, then it's possible that aesthetic element could be eligible for copyright. If the designer could establish that the cabled/twisted/over the top design was completely her own, and nothing similar was previously copyrighted, then she might be able to be granted a copyright for it, provided that she applied to register the copyright.

And even then, who knows if the copyright office would view the stitch pattern as a design eligible for copyright, or if they would say it falls under the "technique/method" exemption?

Annalea said...

Cami, the explanation I read regarding "home use" patterns is that so long as you are making them for sale at home (and not using the pattern to manufacture hundreds of bags), then it's fine. Manufacturers are dealt with differently than individuals--they have to work out a manufacturing contract for the pattern.

I think it's all about money, really. A large manufacturer stands to make a lot of money off of mass producing Amy Butler's bags. And would therefore be a big enough prize to pursue in court. The average WAHM just isn't worth chasing--as we can see from all of the Amy Butler pattern-based bags for sale out there.

Just my nickel's worth . . .

TopHat said...

This has definitely been something I think about. When I give/sell a knitted item, I always make sure that I've altered the pattern enough for me to justify the exchange, just in case. However, patterns for myself, I figure fall under personal use. Thanks for this post, though.

Amanda said...

I have always read the law the same as you, so I'm disturbed at the number of designers who write that their patterns may not be used to create items to sell.
I tend to stay away from their patterns just to avoid hate mail. Many companies that provide free patterns (Lion Brand, for instance) will tell you that selling the items made from their patterns is completely legal, as long as you don't provide the pattern.

Annalea said...

Thanks so much for your comment, Amanda. I'm often the same when it comes to patterns with lots of restrictions on them (whether legally binding or just coercive). It makes me very reluctant to make a purchase from that designer simply because they have taken an adversarial stance against their own customers.

Krakovianka said...

Wonderful post--sane, sensible, sensitive. I applaud your research and may post a link to this on my blog at some time in the future.

Wool said...

Annalea,

Phenomenal research! You have made clear what I've felt and believed all along but could not put the time into proving.

I also steer away from the patterns that say you can't make anything for sale out of the patterns, but now that you've documented this so well, I may be changing my thinking on this as well.

I normally don't follow a pattern exactly anyway, and am very adept at looking at something, figuring it out on my own and making something similar enough in feel, without exactly duplicating it anyway, but I'm thrilled for the clarification.

A thousand thank you's for doing this.

Deb

Anonymous said...

Perhaps it's useful to make a distinction between US law and ethics. If a designer sells a pattern on the web and someone thinks it's fine enough to want to make multiple items and sell them, does that strike you as ethical?

Cathy said...

To anonymous:

Perhaps it's useful to consider practicality. Complex patterns take far too much time to produce a finished product, such that they are not profitable. That leaves simple patterns that are easily discovered on their own.

And designers do have a way to legally prevent the selling of items, should they decide that is in their best interests. It probably is in their best interests to prohibit mass production, but small time limited sellers is in fact more of what they are seeing.

Why should they be concerned with people who sell a handful of items over the course of a year? I don't see this as an ethical dilemma for the knitter. Rather I see it as a pretty greedy designer.

Annalea said...

Anonymous:

Ethical? Absolutely. According to the ethics of natural law: That in which you invest time and labor, which is not already owned by another (i.e. already being invested with someone else's time and labor), belongs to you. The finished items belong to the person who knit them, (investing their time, effort and materials), and to no other. The only thing that would change the ethics of the situation is if you had entered into a contract agreeing not to sell the items you make from said pattern.

A purchased pattern is protected by law such that those who purchase it may not reproduce the writings and diagrams and resell them. However, the process of producing the item described in the pattern is not covered under copyright, nor is the finished item. Unless prevented by a legally-binding license agreement, selling items from patterns you purchase is not only legal, but ethical as well.

Thimbleanna said...

Great post Annalea -- I can't believe I missed it the first time around.

I remember years ago on the embroidery boards there was a big brouhaha about using Disney embroidery designs to put on sweatshirts and sell at craft fairs. There is apparently an exception on those designs that says they may not be put on items to be sold and all of the women on the boards lived in fear of the giant Disney machine, saying they'd heard stories of how Disney had some after the home crafter.

So...where would that fall in your mind? I could see arguments that go either way.

Annalea said...

I know this is an OLD post, but I thought I'd answer you, Anna, for the sake of having all the info in one place.

Embroidery designs are very much covered by Title 102 (5) of the copyright law quoted above. They're purely decorative elements, easily separable from the utilitarian item upon which they're worked.

Disney is a stickler for that kind of thing, since they have SO much invested in their images. That's why you need a license to put their stuff on things for sale, or to put Mickey in an embroidery design.

This post only applies to sewing patterns, knitting & crochet that produces utilitarian items . . . embroidery is a whole 'nuther kettle o' fish. ;o)