Wednesday, March 2, 2011
My husband is Irish and we spent a wonderful vacation in Ireland a few years ago. A magical vacation in a magical land.
One of our favorite places was Tonakeera Point on the West coast, one of the world’s most beautiful secrets. Acres of green meadows overlook sandy beaches and purple hills. Even on this rare sun filled summer day we (and the sheep of course) had this story book world to ourselves.
These photographs are available in my Etsy shop as prints or cards for St. Patricks Day.
For those new to my blog, I began a series of discussion about copyright last week. I am a retired attorney, although intellectual property was not my area of expertise, as an artist I have done research in the area and want to share a little.
Please refer to my last post for a some basic information on what can and can't be copyrighted.
Today I thought I'd dive into a confused topic that has been endlessly discussed in Etsy forums: copyrighting patterns and the products made from those patterns. Sewing patterns, knitting patterns, crochet patterns, felting patterns etc.
There are two distinct questions - can the pattern itself be copyrighted? - can the item made from the pattern be protected by copyright?
The answer to the first is probably yes, the answer to the second is almost certainly no.
Copyrighting the Pattern
Keep in mind that as we discussed last week an idea cannot be copyrighted, only its tangible fixed form. In addition a simple list of instructions cannot be copyrighted.
The copyright law requires "minimal creativity" and a mere list of instructions may not meet this standard. There should be ''substantial literary expression in the form of an explanation or directions'. This does not mean that you need to write like shakespeare but a little more than
1. k3, p.4. would probably be best.
And remember it is the finished written pattern that is copyrighted - how it is set out, explained, illustrated etc. not the idea or process behind it. If someone purchases one of your sweaters for example and creates their own pattern to make the same sweater they have not violated your copyright.
However, if someone purchases your pattern, they CANNOT copy and destribute copies. They can lend the original to a friend but they cannot make their friend a copy and they certainly cannot sell copies.
Copyrighting items made from a pattern.
The simple answer here is that copyright does not extend to the items made from the pattern.
Patterns are purchased for the very purpose of making the item in the pattern.
We often see on commercial dress patterns, books of patterns, and patterns sold in on line stores like Etsy statements that the items can only be used for personal use and forbidding sale of the finished product. Reference is often made to copyright.
But there is nothing in the copyright law to prevent sale of these items. This would require both the copyrighting of ideas and the copyrighting of useful objects - both clearly NOT covered by copyright law. You cannot copyright a hat, which is a useful object, so you clearly cannot copyright a hat someone else made from your pattern.
On the other hand, it may be possible to limit sale of the items made from your patterns under contract law. I don't know of any court cases where this issues has been considered (though there may of course be cases Im not familiar with) , often there is not enough money involved to bring cases like this into the courts. Copyright language should not be used in any attempt to limit the use of the pattern contractually.
Perhaps language like: By purchasing this pattern you agree xxxxxxxxxx.
For any chance of success this language must be in a place where it can be seen BEFORE purchase.
One final thought, remedies for either violation of your copyright in the pattern or your "contract" for item use are limited, so please remember that once you publish your pattern it is largely out of your control.