©opyright for Quilters and Crafters
by
Sylvia Landman
Problems with "Copyright Pirates," are still rising as computers and scanners simplify reproducing the work of others. And increasing numbers of violators have gone as far as copying entire web sites, leaflets, booklets and books then posting and selling them for profit. They also give them away at no cost to increase traffic to their site cutting out the legitimate ownership of writers, artists, designers and publishers.
National newspapers feature articles describing the attitude of copyright owners who "refuse to sit back and take it any more." Millions of dollars have been diverted from musicians, artists, authors and designers, legitimate holders of copyrighted materials, to those who steal intellectual property.
The artistic world needs more "Original Designs." Webster's Dictionary defines o•ri•gin•al as: 1. arising or proceeding independently; inventive; novel: an original idea. 2. capable or given to thinking or acting in an independent, creative, or individual manner: an original thinker. 3. created, undertaken, or presented for the first time.
de•sign: 1. to prepare the preliminary sketch or plans to execute a work. 2. to plan and fashion artistically or skillfully. 3. to intend for a definite purpose: 4. to form or conceive in the mind; contrive; plan. 5. to make drawings, preliminary sketches, or plans. 6. to plan and fashion the form and structure of an object, work of art or decorative scheme. 7. organization or structure of formal elements in a work of art; composition.
Publishers, manufacturers and editors eagerly seek original designs from talented newcomers. However, designs you submit must be original. An item is not original if it is:
- Made from a kit,
- Made from a commercial pattern or variations,
- Made as a workshop project from a professional teacher,
- Made following instructions from a craft magazine,
- Copied from a copyrighted design, pattern, or displayed work.
- Copied from an existing project,
- Copied from a pattern, object or instructions but altered with different colors, dimensions and fabrics.
It is so important to publishers, editors and others who buy designs, that they often ask you to sign a document stating that the work in question originated with you. Changing one or two elements of an existing design does not make a new original design. In fact, copyright literature defines this practice as making "Derivative Copies." Only the originating designer may make and profit from derivations of the original design. Copyright law prevents others from doing so. Penalties can be severe and literally end the career of artisans who deliberately violate these statutes. Start your next project with your own drawings, charts, photos, not the work of others.
Copyright questions generate more interest, confusion and misinformation than any other topic among my college students and clients. Sadly, the first thing some ask is how much they can alter the work of another to claim as their own. Usually, the same individual expresses determination to prevent anyone from altering their original designs.
People usually assume that copyright law is incomprehensible and inconsistent. Not so. Let’s define copyright in the same words the Copyright Office uses. From the book, Copyright Law Of The United States of America, Title #17, Section #102: "The heart of the new copyright law is the grant of certain exclusive rights to the copyright owner. The exclusive rights of an author/owner last for 90 years after the owner’s death and appear below. The right to:
How does copyright apply to crafters and quilters? Copyright provides author/designers with a monopoly to benefit from their original ideas. The copyright owner alone has the right to make copies, reproduce or distribute the work, or prepare derivative works as explained above. Others must secure written permission before using another's copyrighted work.
Let’s take a simple example. Jane Doe designs, makes and completes a sampler quilt. Applying the rules above she may:
Reproduce her instructions, templates and designs and distribute them to students who take her workshops. No one else may do without her written permission. She may copy her own work into a miniature quilt thus preparing a derivative work She can give or sell copies of her instructions to anyone she chooses She can present a lecture about her process and show slides of the work. She can display the quilt at local, regional and national exhibits.
Jane cannot copyright the design while the idea remains in her mind. However,
the moment she "fixes the work in a tangible medium" (paper), she has protection
by common-law copyright. Jane only needs to place the copyright symbol, (©)
followed by the date, her name or the name of her business prominently on her
work.
Registering her copyright is another matter. Before Jane could take infringement
action against Mary who copied Jane’s instructions and distributed them to
members of her guild at no charge, Jane must register her copyright with The
Library of Congress.
People often assume you may give away the work of another, as long as you do not make a profit. Not so. The design belongs to Jane and no one can give it away to others without her permission. "Fair Use" doctrine also generates confusion for many but the law is clear. Quoting directly from copyright literature, we learn when we can use the copyrighted work of another without permission. "Fair Use" allows others to use your copyrighted work without your permission to copy a small part for: review, comment, scholarship, research, news reporting and teaching but in crafts/quilting it is teaching that brings forth the most controversy.
Copying the hand-outs of another and teaching that person's class to another
group and distributing the copied materials to the new group violates the
owner's copyright. Quilt and craft teachers, at times, interpret the law to say
they may copy another teacher's hand-outs because the activity is considered to
be "teaching." Copyright law explains that classroom teaching exemption applies
to nonprofit educational institutions such as primary schools, high schools,
colleges and universities. (Section 110.) Guilds, seminars, conventions, may
have non-profit status but are not defined as nonprofit institutions of
learning. The copyright handbook makes this distinction clear.
Since Teachers may make copies of patterns for educational use in non-profit settings, a craft instructor may make copies (limiting the number of pages used from the whole according to Copyright law) from a current magazine for each student in her high school class. The same teacher may not use the same reprint to teach in a local shop or seminar. Why not? Because these are for-profit settings, not to be confused with the non-profit status of the group. (Section #107).
When groups or individuals photo-copy the work of others and distribute them even for non-profit purposes, they deprive the legal owner from profiting from his or her design. Purchasers of commercial patterns expect to recreate designs according to copyrighted instructions. This constitutes "Fair Use." You can make a project from a pattern to keep yourself and give the project as gifts.
However, if you try to profit from the design, mass produce it for sale in nearby shops or fairs, you would surely hear from the pattern company. They have the right to seek an injunction to stop further production and force you to turn over profits legally theirs.
Artisans frequently ask when a work enters public domain enabling them to use or copy a design freely. Without renewal, "Any copyright existing before January 1, 1978 shall endure for 28 years from the date it of registration," states the law.
Questions arise when you try to determine the copyright status of a work before the new 1978 law took effect. Works published 28 but less than 75 years ago received protection for 28 years unless the owner filed a renewal. Few designers renewed copy-rights during this time, but if they did, they received an additional 47-year renewal term.
 |
The notice at left comes with permission from The Material Girls Quilt Shop in Sacramento, no longer in business. I wanted visitors to my site to see it too. Nancy Kirk wrote the clear, concise yet friendly reminder to customers everywhere and all can benefit from reading it.
Graphic and text provided by |
If you find a pattern you want to use in a magazine published in 1963, without renewal, this material entered the Public Domain in 1991 when anyone could use it. Contact the Library of Congress to see if the owner filed a renewal. You can research yourself at certain libraries throughout the U.S. or pay the Copyright Office to do it for you. If you cannot determine whether or not a renewal exists, subtract 75 years from the current year to be absolutely safe. Anything copyrighted before that date is now in the Public Domain. In the year, 2000, anything copyrighted before 1923 entered the Public Domain.
Here is a letter I received recently that you may find of interest. It illustrates how to request permission to use copyrighted material.
|
Dear Sylvia, Last August I wrote to you about wanting to share your article on copyright rules with my guild here at Sun City. The result has been educational and rewarding. We have developed a policy that states no opportunity quilt will be done unless there is written permission from the designer or publisher and a copy of said permission will be kept in the club files. We have also developed a form for our teachers requiring the purchase of patterns for each person attending a class. This form has several parts to hopefully cover the different possibilities. The end result is that we are respecting the hard work of a designer by each person taking a class is purchasing the commercial pattern. We are also encouraging original designs from our members. Your article has been very helpful in developing our policy and procedure. |
What about traditional quilt patterns like Log Cabin or Wedding Ring fit in? These designs have been in the public domain for decades and anyone can design a quilt using these patterns. If you design an original quilt based upon Log Cabin, for example, you can copyright the quilt’s design. Recognize you are not copyrighting Log Cabin, but how you incorporated a traditional pattern like this in your quilt. Your design copyright covers how you used color, fabric, scale, overall measurements and borders. Copyright protection extends to your instructions and template drawings for the quilt.
|
U.S. Copyright Office Announces Fee Increases Effective July 1, 2007: $45—Basic filing fee. The fee for a paper application. $35—Electronic filing fee. On a limited basis, a fee of $35 is in effect for electronic filing of a basic copyright registration. Online filing began in a beta test this summer for a limited number of participants. Once testing is complete, the system will be available to members of the general public. www.copyright.gov/reports/fees2006.html |
Myths About Copyright:
1
Registering a copyright costs $45. Why not save money and seal the originals in
an envelope, mail them to yourself and file the unopened contents in the event
of future infringement lawsuits? Lawyers affirm that such "sealed envelopes,"
too easily tampered with, have no legal position in court if there is trouble
later.
2. Since the copyright law of 1978 states protection begins immediately upon
creating a work, you no longer need to register with The Library of Congress.
Well, not quite. Though the symbol appearing on your instructions announces that
you claim the design and it is not in the Public Domain, an important reason
remains to register your copyright formally.
Placing the copyright symbol on your pattern instructions is not the same as
registering the copyright with the Library of Congress. Since 1978, a work is
copyrighted from the moment you put it on paper. Using the copyright symbol ©,
without registration is a "common law" copyright. It announces your intention to
claim the work as yours, preventing it from entering the Public Domain. However,
common law copyright serves a purpose. It protects your design while it goes
through the publishing process for example. Upon publication, the publisher
copyrights the entire contents of the magazine including your article. You
cannot defend a copyright without registering it first. If someone copies your
new booklet of instructions and you never registered it formally, you will have
to delay proceedings. You must pay extra fees to "expedite registration." You
will find limits on the amount you can collect even if you prove the design is
yours.
3. "Copyrighted designs become yours if you make a certain percentage of
changes." Not so. The Copyright Law states that modifying someone else's design
is "Preparing a Derivative Work" Changing colors and other details is not
creating an original work. If you alter an existing design, remember, the
crafting/quilting world is small. If the copyright holder of the original design
sees your copy and takes legal action against you, you must defend the
similarities in court. If a judge finds that a design uses a "substantial part
of a copyrighted design," the copier is in violation of copyright laws. Fines
range up $25,000 and can include legal fees.
4. Some teachers photograph photos of quilts from books and magazines to show during lectures and classes. They believe this is legal as no text is involved. Sorry, Section #102 specifically mentions that copyright protects photographs in books and magazines just like written material.
5. "If it doesn't have a copyright notice, it's not copyrighted." This was true in the past but today's law specifies that a work is copyrighted from its inception. Assume that a work is copyrighted, not that it isn't.
6. Recently, a shop-owner who was notified by an attorney that legal action was to be taken against her for posting the work of others on her website, replied, "Anything that appears on the World Wide Web is free to copy. Not so and attorneys will tell you so. Note the copyright disclaimers on nearly all websites to protect their text from reappearing under someone else's name.
7. "Out of print" means the same as "out of copyright!" Not so again. See details earlier in this article about the term of copyright which applies whether or not the work is in print.
8. "Defend your copyright or lose it" Another myth. You only "lose" your copyright when its term expires, 90 years pass from the death of the copyright owner, or when the owner explicitly gives or sells their copyright or signs a contract to "work for hire" indicating that the owner of the copyright may be an employer, publisher or another person rather than the designer/writer.
9. "Sharing patterns, magazines and copies of books is friendly and groups may contribute pirated copyrights to its members." Many such groups have been fined and prevented from ever having a web site again. Stealing is stealing, not friendly" or "sharing." Violating the law invites legal action and should be taken seriously.
10. Names and titles are not copyrightable. To protect the name of your business you need a trademark from the Patent and Trademark Office in Washington, D.C. Unlike copyright, trademarks must be exclusive which means that if someone else has already registered a name you are considering for your business, you must seek another.
11. "When I post the design and instruction of another person on my website, I am giving them free advertising so this is allowed." Sorry, it is not. People doing this today are finding themselves in court in increasing numbers. Again, you do not have the right to give away the work of another.
I hope you find this information valuable and that it clarifies your understanding of Copyright Law. Allow me to add a final disclaimer. Please do not contact me with problems or questions about a specific copyright issue. Contact an attorney for this. If you cannot find an attorney you can afford, contact the Volunteer Lawyers for the Arts in your state and request an appointment for a small fee ranging from $35-$50.
|
From the Copyright Office Handbook, we read: "Re: general copyright fair use. 'Copyright in a pattern normally pertains to the pattern itself, i.e., to the written instructions, diagrams and/or pictures, not to the object that is constructed from the pattern. If the pattern, however, includes original artwork that would be incorporated into the work that is made, then a person may need permission to use it commercially. An example of that would be a knitting pattern depicting original artwork. An example of the opposite would be a dress pattern: the dress made from the pattern is not subject to copyright protection.'" |
|
The Copyright Office will send forms at no cost and also permits you to download them to your computer. The forms include instructions on filling out the forms. Craft and quilt designs are covered with the following forms:
Form TX covers literary works. This includes patterns, instructions,
template drawings, articles and books. The Library of Congress, a user friendly bureaucracy, provides help with copyright questions and problems. They offer a large list of free publications. Write and request the following free circulars from: The Library of Congress U.S. Copyright Office, Washington, D.C. 20559.
Circular 2, Free Publications on Copyright |
For
patent information, application forms and free literature, contact The U.S.
Department of Commerce, Patent & Trademark Office, Washington, S.C. 20031. Ask
for the booklet, Basic Facts About Trademarks.
Books
Blue, Martha, Making it Legal, Northland Publishing, Flagstaff, Arizona,
1988
Crawford, Tad, The Visual Artist's Guide to Copyright Law, Press, CO,
1984, 1988, 1991, 1993
Fishman, Stephen, The Copyright Handbook, How to Protect & Use Written Words,
Nolo Press,
Landman, Sylvia, Crafting for Dollars, Turn Your Hobby Into Serious Cash,
Prima, 1996
Landman, Sylvia, Make Your Quilting Pay for Itself, Betterway, 1997.
Landman, Sylvia, Quilting for Fun & Profit, Prima, 1999.
Landman, Sylvia, Make Money Quilting, 2005
Samuels, Edward, The Illustrated Story of Copyright, 2000
Web sites
The Copyright Website:
http://www.benedict.com/
U.S. Copyright Office, Library of Congress: http://www.copyright.gov/
Find lost quilts:
http://www.lostquilt.com/CopyrightYourQuilt.html
New fees since 2002:
http://www.copyright.gov/reports/fees2002.html
http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm
http://www.embroideryprotection.org/
Copyright © July, 2009 by Sylvia Landman. All rights reserved. No part of this site may be copied or produced by any means without written permission from Sylvia Landman.