Thursday, April 2, 2009

"Copyright and Quilting" lecture March 2009 by Diana Bradley

Many thanks to Diana for sharing this lecture with us, then sending it in written form that we might put her words here for those members who were unable to attend her lecture.

This is a huge topic. These few pages only touch on the highlights. For serious research go to the Internet and Google quilting copyright - you will get many articles that go into more depth about the issues. The best I can do is give you a quick and dirty overview. And remember I am not a lawyer. This is not legal advice – but friendly, educational, information from one quilter to another.
In a nut shell.
People who create something original own it. They have the right to all benefits from their original creation. True for all artists; painters, sculptors, musicians, writers and quilters. The rights and benefits of creative ownership are part of the copyright laws.
A copyright is created when an original design is fixed in a tangible form. The design has to be original and it has to physically exist is some medium. It could be a set of drawings, or a pattern on paper, or it could be created in cloth. An idea for a quilt still in your head, or a rough sketch is not tangible. The copyright exists once the item is real. You do not have to register anything to create a copyright. If it is original, and it exists in some form, there is a copyright, no registration required. This means you can’t use someone else’s design even if there is no copyright statement on it. (But if you create the original work it is a good idea to register your copyright, because you can’t take legal action unless it is registered).
The copyright holder, the quilter who made the quilt, has the exclusive rights to copy, distribute copies and publicly display the original work or copies of the original work.
Copies of the original work. What is that? A copy is a substantially similar reproduction of the original in any medium. (Like the quilt is made out of cloth, but if you photographed it, the medium could be paper or electronic)
So what does all this mean to the average quilter?
Amazing Alice creates a fabulous ORIGINAL quilt. You see the quilt hanging at a show. You want to make a quilt like Alice’s. What can you do?
1. If Alice has written a pattern for the quilt, you can buy the pattern. Fair use means that by making a pattern available for you to purchase, Alice implied her permission for you to make a quilt based on the pattern. In other words, you are allowed to make a copy of her quilt for your personal use.
2. What if Alice didn’t write a pattern. Can you take a photograph and then go home and write your own pattern? No. It’s an original design. Alice owns it. You cannot even take a photo unless you have her permission. You cannot draw a picture of her quilt. Remember she has the exclusive rights to the original and copies of the original in all mediums.
But you are in luck. Alice did write a pattern. Follow the directions and make a wonderful quilt. It’s so wonderful you want to enter it in a quilt show. Can you do that? No. Not without Alice’s permission. She decides how copies of her original may be publicly displayed. (At some technical level this would even apply to local guild shows. But there are no quilt police, and it’s not likely such a showing would be actionable in court, most sources say a local showing would be OK – but you are really better off asking for permission.)
You do enter your quilt in a local show and it wins a prize of $200. Can you accept the money? I sure hope you asked Alice for permission to display the quilt. Because if you didn’t and money is involved you are definitely in a pickle now. You cannot profit from Alice’s protected work. You should offer to share the prize with Alice. Without her design, you could not have made the quilt.
Someone who saw your quilt in the show fell in love with it and offers you $2000 to buy it. You love your quilt, but sure would like a new sewing machine. Can you sell the quilt? No. Not without Alice’s permission. She has exclusive rights to distribute the copies of her original design. When you purchased the pattern all you got was the right to make a copy of the quit for your own personal use. You do not have the right to sell it.
How many of you already knew this?
A few years ago this was a very hot topic on the quilt blogs. A quilter made a complex quilt top, decided she didn’t want to quilt it, and put it for sale on eBay for $1200. The quilt was from a copyrighted original pattern. The owner of the copyright exchanged some email with the topper and eventually requested a royalty fee if the quilt top was sold.
Many quilters were enraged to find out that after carefully selecting fabrics, paying for them, investing much labor and time into cutting and sewing and maybe quilting a project, they did not own the right to sell the project. Some even vowed to boycott all commercially printed books and patterns. Which would vastly boost the creative climate in the quilt world, but be hard on the quilting industry. But the bottom line is that when you buy a pattern of an original quilt, all you have purchased is the right to make a copy of the quilt for personal use. The copyright holder reserves the right decided how copies of her quilt can be displayed and distributed.
So here you are with this stunning award winning quilt that you cannot sell unless Alice gives you permission.
The chairman of the local breast cancer awareness organization loves your quilt and thinks it represent the perfect theme for the quilt auction her organization plans to hold next month. She wants to put a picture of your quilt on their brochure advertising the auction. This is a nonprofit organization. All money will be donated to their charity. Can you let them do this? No. Only Alice can decide how pictures of the copies of her quilt can be displayed in public.
Your guild is thrilled you won an award. They want to post a picture of your quilt on the guild web-page. Can they do that? No.
Your mother is excited that you have won an award. She wants to have t-shirts made with a photo of a portion of your quilt printed on them to mail to all the relatives. Can she do that? No.
Your daughter loves the quilt. She asks for it as a wedding present. Can you give the quilt to your daughter? Yes, if your daughter will display the quilt in her own home for her personal use only. If Daughter want to display the quilt in public, sell it, or copy it she must ask Amazing Alice.
You have 3 other daughters and 4 nieces. They all beg for a copy of this quilt. Can you make more copies and give them away? No. Implied consent with the pattern purchase is that you can make a copy for your personal use. Now again, there are no quilt police. No one is going to arrest you. But technically only Alice can decide how copies of her quilt are to be distributed. By making more copies you are impacting Alice’s potential market. Maybe Alice wants to sell copies of her quilt. You should give the kids money and tell them to go find Alice. Which might be a heck of a lot easier than making 7 more copies of that quilt.
Suppose you decide to make another quilt. But you change the colors, re-size the blocks, rearrange the blocks, and change the border. Now can you make copies for sale or multiple copies to give away? Probably not. Variations are the most difficult issue in copyright. Your changes have to be great enough to produce an original quilt, not infringing on another artist’s design. This is decided on a case by cases basis. Simple changes like changing the color, the size of the border and the block arrangements are probably not enough to take your quilt out of Alice’s copyright. A copy you made with these simple changes would be considered derivative work. Derivative works are quilts that share a similar element or theme, and one work derives form the other. Only Amazing Alice can make derivative of her designs.
Be honest, if you start with Amazing Alice’s quilt and just tinker around with a few elements you haven’t created anything original. It’s still Alice’s creation.
Let’s look at some issues from a teaching standpoint.
You see Amazing Alice’s quilt at a show. You ask her to come and teach at the guild. Everyone is excited. The class fills up. Not everyone who wants to take the class can fit in. Amazing Alice explains how to make the quilt and hands out diagrams and instructions. Can you make copies of her handouts to give to the guild members who were unable to take her class? No.
Suppose the quilters in the guild class decide to get together and make the quilt for the guild raffle quilt. The guild is a non profit organization with teaching as one of their goals; can they make the quilt and raffle it off? No. Who gets to decide how copies of this quilt are distributed? Only Amazing Alice. You must ask permission first.
Can you make 100 copies of the quilt Amazing Alice showed you how to make in class? No. Can you sell these copies at local craft fairs? Definitely not. The quilt made as part of Amazing Alice’s class has the same restrictions that I described in the case of buying the pattern. For personal use only unless you get permission.
Everything I have talked about so far relates to an original quilt design. And everything I have said can be summed up in 6 words. For Personal Use. Ask Permission First.
Let’s talk about traditional patterns.
Copyright doesn’t last forever. And copyright laws change. After 1978 the term of a copyright became the life of the author plus 70 years with some legal variations. So an out of print pattern or book is still protected by copyright. You cannot make copies of something just because it is out of print. The copyright holder is the only one who can decide to print or not to print. Which is sad because there is some really great stuff out there that is out of print.
Because laws were different in the past, anything published prior to 1923 is in the public domain. That means it is available for anyone to copy, use, sell etc.
We usually call these designs traditional blocks. There are probably thousands of designs that are in the public domain. Log cabin, Ohio star, Wedding Ring, Shoo fly, variable star, grandmother’s flower garden,
There are lots of patterns that are copyrighted that use tradition designs. How is that possible?
Once a design enters the public domain it cannot be copyrighted again.
A pattern using a log cabin block does not copyright the block design, but the text of the pattern, plus any new design elements which may have been used in the quilt like an original border or quilting design.
That’s another issue by the way. Did you know that quilting designs are also copyrighted? If you use a published quilting pattern, say a specific bird of paradise with feathered trees that was published in some book somewhere or that was a purchased quilting stencil, you cannot use that design for anything other than personal use and if you wanted to enter that quilt in a national show, you should ask permission of the copyright holder for the quilting design.
Back to our traditional designs here.
The log cabin block design is in the public domain. As well as hundreds of variations of the log cabin block.
But I could still write a pattern for a log cabin quilt. And I can copyright the pattern. But in this case, the only right I have is the copying and distribution of the pattern I wrote. I can tell you that you may not copy my directions to sell or give away. But all I created was a specific set of directions for making the design. I did not create the design. There are 72 umptemillion other patterns (all copyrighted) that tell you how to make a log cabin block. I did not create the design so I cannot dictate to you how you dispose of the product you make with that design.
So a copyright pattern for a traditional block is not a copyright of the block design. Because that is in public domain and can’t be copyrighted. It is a copyright for that specific set of directions and diagrams.
So anyone can make a quilt from a traditional design and do whatever they want with it including publishing patterns and selling quilts.
It’s not always easy to know if a design is in public domain or not. I have found many claims of original blocks that proved to be false with only a little research.
I know a local author who published a book and no sooner got it into distribution than she got a nasty phone call from a Wisconsin quilter who had already published the same quilt (in the same colors no less), and claimed our local quilter had stolen her design, violated copyright, and demanded the book be pulled or legal action would be taken. It didn’t take much research at all to find out that the block in question was in the public domain (using Barbra Brackman Encyclopedia of Pieced Quilt Patterns). There was nothing unusual or creative about the set. Both quilts used a straight set with plain borders. You cannot copyright a color combination. Which is good because the quilts were blue and white, it would be hell if only one person was allowed to use that color combination. And all the words and diagrams were clearly different from the Wisconsin quilter. So our local quilter pointed this all out and said have your lawyer call my lawyer and that ended the matter.
Is there grey area between the truly original creation and the traditional public domain designs? You bet. What if the pattern maker used an unusual combination of public domain blocks? Or maybe the set is unusual, or the border is an original design element. More and more pattern makers are writing extended copyright information on their patterns, Here are two other examples:
This example is from a pattern from Miss Rosie’s Quilt Co:
"Requisite Legal Mumbo Jumbo…Copyright 2004 by Carrie L. Nelson. All Rights Reserved. And that means…? Copyright law is always changing, to the extent that you’re are almost certainly prohibited from making copies of this pattern for any purpose, even personal use. However, for the purposed of this particular pattern, I do not have any objections with your making a copy for your own use, or even to share with a friend. Just don’t make a hundred. You may also sell finished quilts from this pattern, but you will need prior written permission unless it is for a charity. I you do sell finished quilts made form this pattern, I would appreciate you giving me credit as the source of the design."
This example is from a pattern by the Sunflower Pattern Co-operative:
"Copyright 2001 Sunflower Pattern Co-operative…We adapted this pattern from antique quilts in the public domain, but it is our own modified version and is copyrighted by us. You may use this pattern to make quilts for your personal use, and also to make fund-raising quilts for guilds and other non-profit groups, as long as you give us credit as the pattern source. You may not make quilts in this design to sell and certainly you may not copy the pattern to sell or even to give away. We encourage you to teach classes in this design, but you must require each student to buy his/her own copy of the pattern."
Read the copyright statements on the patterns and books you buy and abide by their rules, or don’t buy them.
There are some important things in the quilting world that cannot be copyrighted. For example, techniques and methods and style cannot be copyrighted. Which is a good thing because rotary cutting strips then sub-cutting in to squares is a technique. If that was copyrighted and owned by one person we would be in deep trouble. So if you take a class to learn how to do some unusual method of reverse appliqué you can use that technique any way you like. (But obviously not in someone else’s original design). AND you can teach the technique (not with copies of the teachers handouts, you have to create your own handouts) and you can create your own designs using that technique and your designs are covered by copyright. An example of a style of quilt that is not copyrighted would be watercolor quits. You can learn that style and apply it without seeking permission from anyone because style cannot be copyrighted.
If you make a quilt from a purchased pattern, remember you only purchased rights for personal. Unless you are certain the design is in public domain, you need permission to do anything with that quilt except display it at your house. If you want to enter a quit in a national show, ask permission. If you want to sell something made from a pattern, unless certain it is in public domain, you absolutely should ask permission. Email is a wonderful thing. When in doubt ask.
PS. I had a question at the meeting about copyright and Block of the Month Designs. Many Block of the Month series use traditional blocks that are in public domain. However the blocks can still be copyrighted. In this case the copyright is covering the unique and original selection and placement of specific fabrics. Before you do anything other than personal use of a quilt made from a Block of the Month program, you should ask permission first.

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