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Topic: Is there a Lawyer in da house?  (Read 2618 times)
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oddtraveler
« Reply #10 on: July 28, 2006 11:06:19 AM »

Ok legal aside, with the exception of the blog thing, every example you mentioned falls under the concept of personal use or sharing among friends - not for profit, and not just throwing it out there for the whole world to copy from.  The blog thing, it depends on what the quote was but it's not copyrighted just because it came out of your mouth, and even if it were, you'd be citing your source, and still not using it for profit.  Likewise, I would expect a person who's made a knitting pattern to just accept that I'm going to let my friends borrow the book or whatever, but I would not expect to see it posted on a forum like here, where thousands of the general public are now getting my pattern for free.  I would want to be paid for the pattern that I had drawn up and published.

I am a little fuzzy on the concept of not being able to sell anything that you made from a pattern though, without giving the pattern maker a cut - while you did use the pattern, you also already paid them for it, and didn't you also put your own hard labor into it, as well as parts of your own style and originality (such as fabric choices, any alterations, etc) that would make it uniquely yours?  At that rate, in theory whoever made the pattern for the basic cable knit sweater, or the basic men's dress shirt would be the wealthiest person in the world by now.  Who knows, maybe they are. 

But I would figure that either the pattern was so unique that it was clearly a copy of a particular designer's very very unique style of product (like, say, a cabbage patch kid) in which case the product itself has likely already been made and marketed.  Or it would fall into the basic shirt/purse/sweater/whatever pattern, where it's got so much in common to other similar patterns that how the *&%^ would the person who published that pattern ever be able to say that they didn't get to their pattern by doing something really similar to other patterns - so would you then give them a cut on the purses/sweaters you sell, and they'd then give their influence a cut, and so on and so on and so on? 
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PaisleyPanther
« Reply #11 on: July 28, 2006 04:21:12 PM »

Another question.... Is selling a knitting book (or any other book, really) illegal?  Are garage sales and used book stores somehow copywright problems?  whats the legality on that?
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kirstyd
« Reply #12 on: July 28, 2006 05:43:23 PM »

Yeah, you've made a good point, but I design quilt patterns and can see it from the other side. Designing and then manufacturing patterns is actually difficult, labor-intensive and involves significant production costs. When someone does something like post it on a forum, they are effectively stealing the pathetic amount of money I would have received from the sales (I love sharing too, but not patterns that have cost me money to make). It doesn't sound like a big deal, but for most designers that is stealing their livelihood! Think of it as taking the money from the tips jar at a cafe...
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amey
« Reply #13 on: July 28, 2006 08:00:31 PM »

Another question.... Is selling a knitting book (or any other book, really) illegal?  Are garage sales and used book stores somehow copywright problems?  whats the legality on that?
No.  I could turn around and sell on ebay or half.com or thru the used book place all my beloved Stephen King books.  What I CANNOT do is make a photocopy of the entire book and sell it.  Nor can I take the entire text and self publish it as my own ("Firestarter" by Amey!).  It is my understanding (and I have only "I heard" as my source for this) that I also cannot photocopy my edition of Firestarter and then sell the actual book (so that I have sold a book, but still actually have a copy - kwim?).

ALso, have you all seen this: http://tabberone.com/Trademarks/trademarks.html  They claim that it is NOT a copyright violation to make items for sale from a purchased pattern (ie. I can buy a Butterick pattern and make the dress to sell) - I think what might be a violation would be to sell it by calling it a Butterick dress.  I'm curious to know the real skinny on that, honestly. 

~amey
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ultraviolet
« Reply #14 on: July 28, 2006 10:07:32 PM »

ALso, have you all seen this: http://tabberone.com/Trademarks/trademarks.html  They claim that it is NOT a copyright violation to make items for sale from a purchased pattern (ie. I can buy a Butterick pattern and make the dress to sell) - I think what might be a violation would be to sell it by calling it a Butterick dress.  I'm curious to know the real skinny on that, honestly. 

I took a copyright class and asked about this issue and was told that you cannot make a profit from something you made using someone else's pattern (without permission anyway). Do you know who is the author of the website you listed? I can't figure out where their information is from or how accurate it is. This is definitely something I want to learn more about.
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maritimah
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« Reply #15 on: July 29, 2006 12:11:45 AM »

ALso, have you all seen this: http://tabberone.com/Trademarks/trademarks.html  They claim that it is NOT a copyright violation to make items for sale from a purchased pattern (ie. I can buy a Butterick pattern and make the dress to sell) - I think what might be a violation would be to sell it by calling it a Butterick dress.  I'm curious to know the real skinny on that, honestly. 

I took a copyright class and asked about this issue and was told that you cannot make a profit from something you made using someone else's pattern (without permission anyway). Do you know who is the author of the website you listed? I can't figure out where their information is from or how accurate it is. This is definitely something I want to learn more about.

It's unclear from the Tabbarone site whether they're talking about copyrights or trademarks. It's not a trademark violation (in North America at least) to recon a shirt with a Coke logo on it and sell it, but it might be a copyright violation to make a dress out of a Butterick pattern and sell it. For example, in Canada, drawings/charts/plans are protected by copyright provided they are original and if you make something following that plan/chart/drawing (a dress or a house or an engine or whatever) then you might infringe on that copyright. It seems like the question comes down to whether or not the resulting object is original or not - a basic shift dress pattern might not be considered original (because it might not involve any creativity on the part of the creator) but a dress that has a really unique construction or cut could be protected by copyright as creative. I'm just about to finish a pretty intensive summer of international and comparative intellectual property law, and it's all still pretty complicated to me. This is definitely one of the grey areas in that it's so difficult to catch.

I should say that this is not legal advice. I'm graduating from law school in...5 days, and I have to mind my professional obligation not to give legal advice  Grin
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Lothruin
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« Reply #16 on: July 29, 2006 08:11:25 AM »

I'm under the impression that it is a copyright violation to make a product from someone's pattern because it is a derivative work, which are protected under copyright.  A pattern might be a simple scarf, and I think many of us agree that these are not really worthy of copyright protection, but the simple fact is that if someone writes down a pattern using a specific number of stitches, type of yarn and size of needle for a certain scarf, this is a fixed form for a specific pattern and it is copyright protected, as odd as that sounds.  You can't use that pattern to make and sell scarves, because you are making derivative works, or copies.  Of course, in that case it would be very difficult to prosecute, because anyone could have picked up a ball of the same yarn and used the same stitch pattern to make a scarf without ever having seen the original pattern, and that is NOT copyright infringement.  But...

It seems unfair to me that, say, Marnie McLean, for instance, provides a free pattern for a dinosaur jacket, and then someone goes out and makes a bunch and sells them.  Marnie retains the sole right to control derivative works of her original designs, which includes selling products made from them.  There's something called "implied license" that can cover a number of issues like this.  Many designers are now making it clear when a pattern is purchased (or, if the pattern is free, then when the pattern is distributed) exactly what you are allowed to do with it.  Any other use of the pattern is prohibited except with permission.  The implied license says that if the designer is providing a pattern, it is assumed that s/he intends you to make a copy of it in craft form.  Perhaps s/he even intends that you can make several copies of it, for personal use.  Typically, selling an item you've made from that pattern is not considered part of the implied license, and before you do so you should clarify the matter with the designer.  Some designers are also including clauses where permission is given with distribution of the pattern to make and sell items from that pattern ONLY for charity fundraising.  Other pattern companies are specifically including in their distribution materials that each pattern can be used ONLY ONCE and then must be repurchased.  (I think I read on a sewing pattern that this was the case... one sewing pattern company was limiting their license to only one copy for personal use of each pattern.  It might have been a vintage pattern, though.) 

In the end, from a personal standpoint, and dealing with lots of independant designers, selling items I've made from patterns which were the hard work and creativity of someone else *without permission* would be rude, even if it wasn't illegal. 

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maritimah
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« Reply #17 on: July 29, 2006 01:10:42 PM »

I'm under the impression that it is a copyright violation to make a product from someone's pattern because it is a derivative work, which are protected under copyright.  A pattern might be a simple scarf, and I think many of us agree that these are not really worthy of copyright protection, but the simple fact is that if someone writes down a pattern using a specific number of stitches, type of yarn and size of needle for a certain scarf, this is a fixed form for a specific pattern and it is copyright protected, as odd as that sounds.  You can't use that pattern to make and sell scarves, because you are making derivative works, or copies.  Of course, in that case it would be very difficult to prosecute, because anyone could have picked up a ball of the same yarn and used the same stitch pattern to make a scarf without ever having seen the original pattern, and that is NOT copyright infringement.  But...

It seems unfair to me that, say, Marnie McLean, for instance, provides a free pattern for a dinosaur jacket, and then someone goes out and makes a bunch and sells them.  Marnie retains the sole right to control derivative works of her original designs, which includes selling products made from them.  There's something called "implied license" that can cover a number of issues like this.  Many designers are now making it clear when a pattern is purchased (or, if the pattern is free, then when the pattern is distributed) exactly what you are allowed to do with it.  Any other use of the pattern is prohibited except with permission.  The implied license says that if the designer is providing a pattern, it is assumed that s/he intends you to make a copy of it in craft form.  Perhaps s/he even intends that you can make several copies of it, for personal use.  Typically, selling an item you've made from that pattern is not considered part of the implied license, and before you do so you should clarify the matter with the designer.  Some designers are also including clauses where permission is given with distribution of the pattern to make and sell items from that pattern ONLY for charity fundraising.  Other pattern companies are specifically including in their distribution materials that each pattern can be used ONLY ONCE and then must be repurchased.  (I think I read on a sewing pattern that this was the case... one sewing pattern company was limiting their license to only one copy for personal use of each pattern.  It might have been a vintage pattern, though.) 

In the end, from a personal standpoint, and dealing with lots of independant designers, selling items I've made from patterns which were the hard work and creativity of someone else *without permission* would be rude, even if it wasn't illegal. 



As far as I understand it, making a scarf from someone's pattern is not a derivative work. Derivative works are works that based on or derived from another work. Derivative works are copyrightable if the derivative work is original in itself. You can only call something a derivative work if it's authorized by the original author. If it's an unauthorized "derivative work", then it's considered a copy of the original work, either in whole or in part. So if you're making a scarf from someone's pattern and you sell it, the infringement comes from making a 3-D copy of a 2-D work. That is subject to the implied license mentioned by Lothruin, of course. If the copyright owner explicitly states that you are allowed to make 3-D copies and sell them, then you're allowed.

Regardless of where the actual copyright infringement comes from, I agree with Lothruin. Knowing all the work that goes into making something myself, it would be pretty hypocritical to take advantage of someone else's creativity for my own gain. Just not nice.
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amey
« Reply #18 on: July 29, 2006 01:33:12 PM »


Typically, selling an item you've made from that pattern is not considered part of the implied license, and before you do so you should clarify the matter with the designer.  Some designers are also including clauses where permission is given with distribution of the pattern to make and sell items from that pattern ONLY for charity fundraising.  Other pattern companies are specifically including in their distribution materials that each pattern can be used ONLY ONCE and then must be repurchased. 

In the end, from a personal standpoint, and dealing with lots of independant designers, selling items I've made from patterns which were the hard work and creativity of someone else *without permission* would be rude, even if it wasn't illegal. 

I've separated out the two points I want to comment on.  I should preface this by saying that I know I'm debating the point, but mostly to play devil's advocate because I"m not sure there actually has been a firm legal statement  on this all.

For point 1 above: it is true that pattern writers are making those statements.  THe question, tho, is whether or not they can.  WHat I mean is that they can make those statements, but they may not be legally supportable.    For example,  I could write a pattern and then include that the item made from that pattern could not be worn (or knitted) by Asians.  That would not be legally enforceable.    So, while I could say that my pattern may only be used for charitable purposes, that may not be a legally enforceable statement.  I don't know if it is.  Maybe it is. 

For point 2 above: I agree.  I know some people offer cottage licenses, and I'll take advantage of those when I want to sell handknits of purchased patterns.  And then, some designers are okay with you selling the items as long as you ask.  I know someone who did that and the designer (a major one) was shocked that anyone would pay for the item, and told my friend to go ahead and make them to sell if she wanted.
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Lothruin
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« Reply #19 on: July 29, 2006 02:22:02 PM »

It is possible that I'm wrong and that the work made from a pattern is a copy, not a derivative work.  Only the copyright holder has the sole rights to copies OR derivative works, but derivative works CAN be made illegally.  For instance, if you have a book, and someone reprints the book without authorization, that's a copy.  If someone writes a screenplay based on the book, that's a derivative work.  Both are illegal unless you have permission.  I guess what I'm saying is, the one is not the "legal" and the one the "illegal" version of the same thing.  I don't know whether a sweater made from a copyrighted pattern is just a 3D copy of the original or a derivative work, but it all prosecutes the same.
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