Monday, July 14, 2008

Copyright & other legal issues

My life as a lawyer doesn't often overlap with my life as a quilter -- other than the suggestion that I'm equally unskilled at both! But every once in a while, something comes up that gets me thinking both as a quilter and a lawyer.

I belong to the Pickle Road Studio message board on Yahoo, a loose collection of quilters (well, I think one or two of them may be loose...) who are quite vocal on a number of issues. They raised two legal questions regarding copyrights and licenses. I will paraphrase them somewhat:

1) Quilt block designs are as old as the hills and almost all are in the public domain. How does someone collecting the various blocks for a public purpose avoid copyright infringement if the book/website/computer program that contains the block is copyrighted? Just redraw the block?

2) Fabric is designed, and some of it is designed by a name designer who claims rights in the fabric design. Some fabric companies offer "free" patterns on their websites, with a disclaimer and reservation of rights that restricts the quilter from making any money from the resulting quilt. Meaning, you can't make a bunch and sell them on Etsy, at a craft show, etc. Which is fine. But can the fabric designer prevent a quilter from selling just any old quilt (or bag or potholder...) make from the designer's fabric without claiming a licensing fee? So the real question is, when does the designer have rights in the money someone makes from an item made with the designer's fabric? And where's the line between licensing issues, which is a contract claim, and copyright laws?

I had my answers, and then I sought even better answers from a higher authority -- my ex-husband (aka "Hub 1.0"), who is an intellectual property lawyer at a big Philadelphia law firm. His specialty is international patent law, but he is very smart about all IP law, and -- frankly -- about virtually everything else you can think to ask him. Here are his answers:

1). If the block design is "as old as the hills" it must be in the public domain by now. However, if somebody makes a new drawing showing the block design, or a new quilt using the block design, or a new photograph of an old quilt using the block design, there may be a thin copyright in the actual drawing, quilt, or photograph. So, you have to go behind the new drawing, quilt, or photograph, extract the old underlying design, and make your own drawing.

2). Assuming the original designer's authorized textile mill sells (or gives) you the original fabric, so that you are the lawful owner, she has exhausted her rights in the bolt of fabric, and cannot stop you selling the quilt, 17 USC s. 109(a), or publicly displaying it, 17 USC 109(c). That one is difficult to avoid, short of a license that requires you to give the fabric back when you have finished with it. But the exhaustion extends only to the physical fabric that you got from the official source.

However, the *quilt design* (which I interpret as covering choice of block pattern, choice of fabric, which fabric goes in which panels of the block pattern, and possibly some fussy cutting) is a separate work, with a separate copyright.

So, the designer, through her website, provides you with the copyrighted quilt design, with a license to use the design to make a quilt. A license is contractual, so she can impose any terms in the contract that do not fly in the face of public policy or the basic statutory scheme of copyright. For example, a clause saying you can make individual quilts for "social, domestic or pleasure" purposes [That one is an obscure joke on English car insurance, so you will wish to rephrase it.] for free, but must not make them in commercial quantities without paying a license fee, is usually considered proper. Note there is one catch. Unless the license absolutely forbids you from selling or giving the quilt away, or requires you to impose a contractual restraint on the recipient (difficult for a gift), the person you give it to becomes the legal owner, and appears to be protected by the exhaustion clause in s. 109(a) as previously discussed. So your donee can sell it, so a ban on your selling it rather than giving it would be a bit pointless. (The practical limits on enforcing license terms may be more generous to the quilter than the legal limits. A designer whose rigorous enforcement made her as hated and despised as the RIAA would probably face not only bad karma but loss of business.)

If you make pictures of the finished quilt, then I think there is likely to be a problem, because you are likely to be outside both the exhaustion of rights in the fabric and your license to use the design. If you merely want to put up the pictures on your private, non-commercial blog, it may be worth doing a "fair use" analysis, or it may be safer to make the pictures so fuzzy that the exact fabric is not recognizable. We would need to look at the facts a bit more carefully.

Of course, if you do not make an exact copy of the quilt as shown in the downloaded pattern, but make a somewhat similar quilt, it becomes a fact-specific question whether you have taken enough of the designer's creation to have made a "derivative work" that is still controlled by the copyright in the pattern, or whether you have made an original work merely inspired by the pattern, which is not controlled by the earlier copyright.

So there you have it -- basically, make your own representation of classic blocks, and buy the fabric, but if you use the fabric company's free design, read the small print. My thanks to Hub 1.0 for his time thinking about and then answering my questions.

I have a couple general suggestions in the IP realm: credit anyone's photo wherever possible, and if you're not sure if you're allowed to use it, ask permission or don't use it. If you've been "inspired" by a better known quilter's work, and your resulting quilt gets some publicity, be sure to credit the inspiration and mention the better-known quilter by name. It may not be legally necessary, but it's just good manners. Finally, don't make money off anyone else's work. That's a broad injunction, but it's a good rule of thumb, and it would include the case above of selling a quilt you couldn't have made without someone else's work, namely the pattern.

Hope this helps!


Northeast Iowa Mom said... explores many fair use suits that originated with eBay related sales, where people bought fabric, made something from it, and tried to sell the produce on eBay, only to be shut down by the fabric mill for copyright (or trademark - I'm not clear on which) infringement. It's such a mess.

I know you and Judy are specifically looking at quilt patterns as the issue here, but I keep coming back to thinking about the fabric. I think it is insane for a fabric mill to claim that it has any control whatsoever on what people make out of what it sells. Bleah!

Magdalen said...

As a quilter, that sort of situation does absolutely amaze me. A single item made from some fabric -- and the fabric mill cares? But as a lawyer, I can this a slightly different way. If you bought a whole lot of some Kaffe Fassett fabric (or Cath Kidston, or any famous-enough designer) and you were able to make 1,000 items that were simple, like potholders, so that what you were really making was Kaffe Fassett (or whomever) potholders, it wouldn't matter that you lawfully purchased the fabric, it would matter that you were making money off the Kaffe Fassett name/style/asthetic without being a proper licensee. I think the distributor (Kaufmann or whomever) is entitled to enjoin the sale of the 1,000 potholders.

Okay, so 1,000 potholders is a lot and one potholder is only one. But then you're just arguing about the numbers. And distributors may feel that it's better to enjoin the sale of the single item and chill the practice at even the most basic level than guess where the line should be.

Again, it's not the creation of the potholders that matters, it's trying to sell them.

donniemay said...

i made a quilt based on a photographs according to color value. will it be considered derivative? i want to show at an exhibit.

Lisa said...

This is interesting to me, and I linked to your post on here:
Thanks for taking the time to put this in layman's terms!