Irish Days

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.

































Copyright
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.

Scanned Flowers

The snow has melted a little and the big icicles have fallen from our windows. The icicles were so huge they shook the house as they fell sending my dog and cats into tizzies.

But the snow is still so deep I can't get leave the drive way and road.

I have been working on my botanical prints, flowers and foliage that I scan directly into the computer, photographs made without using a camera.

I have developed a technique that creats a sheer, almost x-ray effect, luminous. I especially like the transparency of the foliage in these images.

They are available on Etsy now in various sizes or as cards.
























COPYRIGHT
As some of you know I was an attorney in my prior life, art of course is a little less lucrative (hah!) but a lot more fun.
I often have a hard time reading the Etsy forums because of the all the incorrect legal advice and misinformation given there. So I think I will begin a little series on copyright and trademark - some of the basics and especially some of the issues that come up again and again like copyrighting patterns and the creations made from patterns, using licensed fabrics, etc.
First of all keep in mind that law is complicated, there are often no clear answers. Law has two main sources - written laws - the constitution and statutes and case law - the law as it is interpreted by the courts. Lawmakers cannot foresee all the complicated human situations that will arise so the courts must interpret the law on a case by case basis, creating legal precidents that are themselves reinterpreted by other courts. Anyway just keep in mind that there are rarely black and white answers.

What can be copyrighted? Any original work of authorship fixed in a tangible medium of expression. For the visuals artist this includes:
paintings, photographs, prints, reproductions, maps, drawings, charts, diagrams, sculpture, models, wall reliefs, jewelry.

What cannot be copyrighted?
1. Ideas or other intangibles. An idea cannot be copyrighted only its expression.
For example, you are a photographer and you come up with the original idea of photographing a sunset (let us assume this has never been done before). You can copyright the actual photo you took but not the idea of photographing sunsets. All the other photographers in the world are free to steal your idea and photograph a million sunsets, and then copyright their photos.
2. Useful objects, anything that is primarily utilitarian.
You CANNOT copyright, hats, glove, clothing, toys, toasters, pencils, purses etc.
There are sometimes other legal issues with knock offs of clothing, purses etc. but they are not copyright issus.
There is a major exception - if the useful object has art work on it, that art work is protected by copyright. So if you put your painting on a t-shirt, the t-shirt design cannot be copyrighted but your painting is protected.