It's true, isn't it? You're aware that copyright
laws exist and that they somehow apply to
you. Perhaps you also wonder if your blissful
ignorance will one day be your undoing,
like the time you decided not to swatch
before starting a project and wound up with
a sweater half your girth and twice your
height.
Is this some
kind of sermon about doing the right thing?
No. Let's make sure we're talking about
the same thing. Copyright is a legal right
that exists to protect both authors and
users with respect to the creation and use
of literary, artistic, dramatic, musical,
and other works. Copyright, as law, sets
a standard of behavior enforceable in civil
[and sometimes criminal] courts. In this
article, I'm not talking about ethics or
morality, or some unwritten rule about giving
credit to other people; I'm talking about
the basics of copyright law.
Don't get me wrong. There are almost no
straightforward answers to copyright questions.
If you learn anything from this article,
you should learn three things: [1] lots
of stuff is protected by copyright; [2]
assessing copyright infringement is very,
very subjective, and practically impossible
to do in the abstract; and [3] if in doubt,
ask the copyright owner for permission,
or get legal advice from a qualified attorney,
or both.
Before
we begin Knitty readers are all over
the place. Despite the global reach of the
Internet, copyright laws are still territorial:
each country has its own set of laws and
regulations. There is no single international
copyright law, but most countries are members
of one or more international conventions
or treaties that guarantee minimum standards
of copyright protection and provide for
reciprocity [in other words, if you're writing
knitting patterns in New Zealand, you can
enforce your copyright in the United States,
and vice versa]. Although the essentials
of copyright are more or less the same in
these member countries, there can be a lot
of variation in the details; for example,
copyright protection in some countries expires
50 years after an author's death, but in
other countries [notably, the United States],
the term is 40 years longer.
The basics
Copyright law grants
the copyright owner a number of exclusive
rights with respect to a copyrighted work,
including the right to produce or reproduce
[copy] the work in whole or in substantial
part, to perform it, publish it, make adaptations
or derivative works from it, or communicate
it to the public. The exact wording, scope,
and duration of the rights will vary from
country to country, but hopefully you get
the idea.
What makes
a work a copyrighted work? Well, it needs
to be [a] suitable subject matter, and it
needs to be [b] original, and must be created
by [c] an author resident in the right sort
of country.
[a] Suitable subject matter
for copyright includes literary, dramatic,
musical or artistic works. It actually includes
more -- usually databases, sound recordings,
films, broadcast programs, improvisational
music, and other types of works. For our
purposes, though, we'll stick to literary
and artistic works. 'Literary' works include
printed or handwritten matter, plus computer
programs and web pages. 'Artistic' works
may be in any medium and include flat pieces,
such as photographs, and three-dimensional
pieces such as sculpture. There is no set
standard of literary or artistic quality,
but it's usually not very high. The most
puerile bathroom graffiti might very well
be suitable literary and artistic
subject matter. It's subjective.
It's pretty easy
to see, then, how a knitting pattern, chart,
or its accompanying photographs can be protected
by copyright. It's not quite as easy to
see how a handknitted sweater, which serves
the utilitarian function of keeping its
wearer clothed, fits into the copyright
scheme. Let's explore this a little further.
In Commonwealth countries [England, Canada
and Australia, for example], there's some
precedent for saying that clothing or fabric
produced by an artisan may be protected
under copyright law as an artistic work
specifically, a 'work of artistic craftsmanship
' provided the work exhibits a sufficient
amount of artistic judgment. In the United
States, courts have been reluctant to grant
copyright protection to clothing, but there
is scope for copyright protection of garments
that contain elements reflecting the designer's
artistic judgment, if that judgment is not
affected by functional considerations. Now,
the U.S. courts haven't met Kaffe Fassett
or Elsebeth Lavold yet, but it's probably
a good bet that a knitted item incorporating
an original, artistic arrangement of colour
or stitchwork could be protected by copyright
as well.
In other words, an Aran or Fair Isle could
contain enough artistic judgment in the
selection and arrangement of even the most
traditional patterns to merit copyright
protection. On the other hand, you'd be
hard pressed to prove that a plain ol' pullover
in stockinette deserves the same consideration.
Something with a little bit of a stitch
pattern -- it's somewhere in between, but
unless you're the risk-seeking type, don't
assume that copyright doesn't apply.
[b] Whether a work is sufficiently original
is also a subjective assessment. Original,
in this context, does not mean 'unique'
or 'new.' Original means that the work must
have originated from the author. Certainly,
the author will have been inspired by, or
may have based her work on, someone else's.
That doesn't mean that the work is unoriginal.
Is there a minimum threshold of effort that
must be added? Yes. What is it? I can't
tell you. There's no hard-and-fast rule
defining originality. Sometimes originality
is defined as 'not a copy,' but that's not
a very clear answer either. Asking 'how
much must not be copied?' is like
asking 'how much has to be original?'
[c] The author of the work must have
been resident in the country in which the
copyright law applies, or at least must
be a national of a country that is also
a member of one of those international treaties.
The general rule when determining who
owns copyright is that the author is
the first owner of copyright. The author
may transfer copyright to someone else,
who then becomes the owner. Sometimes this
is deemed to have happened automatically
if the author created the work during the
course of employment. The copyright owner
may give permission to someone else to do
something that is within the owner's exclusive
rights. This is usually referred to as a
licence, and doesn't mean that the owner
gave up all her rights.
Copyright protection
is automatic. Some people think they
can rely on online copyright registration
databases, such as the one provided by the
U.S. or Canadian copyright offices. You
can't. In some countries, there was a time
when a registration was required in order
to own copyright, or a work had to be marked
with the universal copyright symbol [©]
in order to be protected, but no longer.
Any original work of suitable subject matter,
once it is created, is automatically protected
by copyright whether it's registered or
marked with a © or not. Mind you, registration
and marking may confer additional benefits,
and registration may be necessary in order
to start a lawsuit in certain countries,
but you don't need to have a registration
in order to allege copyright infringement
against someone else.
Infringement
of copyright is doing anything within the
exclusive rights of the copyright owner,
when you don't have authorization to do
it. Unlike criminal acts, your intention
doesn't matter. Even unconscious copying
may be an infringement. The financial consequences
of infringement can include the payment
of damages, additional punitive damages,
and the copyright owner's legal fees. Enforcement,
however, is not automatic. It's up to the
copyright owner to make sure her rights
are being respected.
Some uses
of copyrighted works do not constitute infringement.
There is a certain amount of reproduction
or adaptation that can be made for certain
purposes that is considered 'fair dealing'
[in Commonwealth countries] or 'fair use'
[in the United States]. The scope of fair
dealing or fair use varies from country
to country; for example, while parody is
a famous exception to copyright infringement
in the United States, it's not so popular
with courts in Canada. The circumstances
that give rise to fair dealing or fair use
also depend on the facts of each situation;
don't assume that you're justified in making
copies of patterns for your best friends
just because the pattern book is now out
of print.
What
it isn't
Copyright doesn't cover
ideas or techniques. Nifty concepts, like
how to knit reversible cables, or a neckwarmer
worked in intarsia giraffe spots, may
be fantastic new ideas. But these are
simply techniques and concepts, and are
not protected by copyright.
What is copyrightable is an author's expression
of these techniques and concepts, in the
form of written instructions, photographs,
diagrams, patterns, or even knitted objects.
If the creators of these techniques wished
to protect the techniques themselves,
they would have to treat them as trade
secrets or obtain patent protection. However,
trade secret protection requires that
the technique be kept confidential and
shared only under strict secrecy provisions
-- not very easy in the knitting context,
and not very useful if another knitter
can figure out the technique for himself
without access to the 'secret.' Patenting
involves an examination and registration
process that takes time and money.
Deceptively
short answers to five big questions
As you read these questions,
you might have the unsettling feeling
that the answers aren't really answers.
You're right -- they're not. Questions
like this can't be answered definitely
or reliably without due consideration
of the ins and outs of your own country's
legislation in the context of the facts
relevant to your own particular situation.
If you have burning questions that need
to be answered, the safest route is to
retain a qualified copyright attorney
to give you advice. No, it isn't cheap,
but if the question is important, you
should weigh the cost against proceeding
on bad advice or no advice at all. You
could try self-medicating, but I won't
pretend that you can find the answers
on your own, even if you do read all the
copyright legislation in the world from
beginning to end. Quite simply, the answers
aren't all in there. A lot of words thrown
around in copyright laws, like 'original,'
'substantial,' and 'fair,' are further
defined in each country's case law as
copyright lawsuits are tried in the court
system. And even then, you can't be 100%
certain that if you were hauled into court,
that the judge would agree with your interpretation
of the law.
By the way, few judges knit.
1. I'm
designing a knitting pattern. Can I use
a stitch pattern I've seen somewhere before?
The building blocks of stitch patterns
-- knit, purl, cable, twist, increase,
decrease, yarn over, and so forth-- are
not protected by copyright.
They're techniques. However, their combinations
might be protected.
If the stitch pattern is in the public
domain, then the answer is yes, you can
use it. However, it is not so easy to
determine whether a stitch pattern truly
is in the public domain. 'Public domain'
does not mean that the stitch pattern
or other work has been published and is
freely available. 'Public domain' means
that any copyright in the work has since
expired.
Where
have you seen the stitch pattern? Is it
a traditional stitch handed down from
the knitting dawn of time [which suggests
it is traditional], or is it
someone's original creation? Is it in
every stitch dictionary you've ever consulted,
or have you only seen it in one place?
The more common the stitch pattern is,
the more likely it would be considered
to be in the public domain.
This does not mean, by the way, that you
can just slap your stitch dictionary on
the scanner and publish a copy of the
chart or photograph. Do your own work.
Even
if you’ve determined that the stitch
patterns you want to use are traditional,
there might be more to consider. An arrangement
of selected traditional stitches may also
be protected by copyright, if the arrangement
itself is original.
2. While
I was window shopping, I spotted a nifty
number in a store window. Can I publish
my own pattern that looks just like it?
To put the question another way, is there
copyright in the store sweater? The answer
is a resounding maybe.
We've already discussed the notion of
a sweater as a copyrightable work of artistic
craftsmanship. If we accept that this
store sweater is such a thing, then yes,
it's protected by copyright. And yes,
publishing instructions telling other
people how to replicate it may be a form
of authorizing or counselling infringement.
By the way, copyright aside, there are
other ways to protect a sweater design.
It could be the subject of an industrial
design, also known as a registered design
or a design patent. Such registered designs
can offer more definite protection than
copyright, and there's no fair dealing
or fair use defence. However, registered
designs are more expensive to obtain than
copyright, and of shorter duration. A
sweater design could also be protected
through unregistered design or trademark
rights if the designer could prove she
was known for or associated with a certain
style of design.
Both of these alternative forms of protection
are less common, but you should be aware
that they exist and that they are being
used to protect clothing designs. So,
even if you don't think the sweater is
protected by copyright -- well, you never
know what other rights the designer may
be able to assert.
But why are you following other people's
trends, anyway? Shouldn't you be busy
setting them yourself?
3.
I'm a fledgling designer. Can I take an
existing pattern I like and rework it
somehow?
It depends.
Occasionally you hear [or read] people
quote a 'ten percent rule' or something
similar -- for example, if you change
10% of the garment, or if you change five,
seven, or ten things about the garment,
you've done enough to make the design
your own. Those rules are not reliable.
What sort of 'things' can you change?
Colour? Yarn choice? Gauge? Do those changes
necessitate any input on your part, besides
some number crunching? Sometimes,
you can't even find five things to change.
Consider the sock or the tube top. Yet
those patterns may be just as deserving
of copyright protection as an Alice Starmore
design.
An assessment of copyright infringement
is not merely a question of quantity;
it's a qualitative matter as well. There
is no set definition of 'reworking;' there
is no magic formula to calculate infringement.
It's a subjective question: for you, for
the potentially offended designer, for
your lawyer, for a judge or a jury. In
the end, the question of whether or not
you've infringed someone else's rights
in a pattern or garment can only be answered
by setting out the patterns and the finished
garments side by side and deciding whether
or not, overall, your version is substantially
similar to the original, and whether the
elements you did take were protected by
copyright according to the law in the
relevant jurisdiction.
Perhaps an easier way out would be if
you were to work from a pattern that you
know is in the public domain. See the
next question.
4.
I'm fond of collecting vintage patterns,
and I'd like to put one or two of them
on my website for others to use. Can I
do this?
It depends on how vintage 'vintage' is.
As we've seen, after a certain period
of time, copyright in the pattern expires.
Once copyright expires, the pattern enters
into the public domain.
However, there are a number of wrinkles.
Copyright may expire in one country before
it expires in another, so the pattern
may enter the public domain in one country,
while remaining protected elsewhere. If
you're thinking of putting those patterns
on the Web, avoiding infringement in another
country becomes a tricky affair. Furthermore,
thanks to the accession of the United
States to international treaties, works
of non-U.S. authors that used to be in
the public domain in the United States
but protected elsewhere automatically
regained U.S. copyright protection in
1996.
You may be wondering whether the republication
of an out-of-print pattern that might
still be protected by copyright could
escape infringement by being characterized
as a 'fair use' or a 'fair dealing.' Keep
on wondering. Although access to the original
work is a factor which may be taken into
consideration, the fact that a book is
out of print is no guarantee that you
won't be liable for copyright infringement.
Not only that, but a finding of fair use
or fair dealing can also be influenced
by how much of the original work is taken.
The more of the work that is copied, the
less inclined a court might be to find
the copying 'fair.'
In short, there are only two ways to be
certain whether you can reproduce a vintage
pattern. The first is to get permission
from the current legal copyright owner,
if you can track him, her, or it down.
If you can get permission, get it in writing,
and file it for safekeeping. The second
is to get confirmation [preferably, from
the copyright owner or a qualified attorney]
that the pattern has indeed passed into
the public domain.
5.
I bought a pattern for a knitted widget
[or I got the pattern for free], and I
want to knit widgets to sell at a local
fair.
Do I need to get permission?
When you follow a knitting pattern, you're
reproducing the knitted item. Well, obviously,
that's what you're meant to do. The question
is, did the owner of copyright in the
knitted widget [and this presupposes that
copyright protects the widget] mean for
you to make widgets for sale, or just
for yourself and for others as gifts?
It's not always easy to determine the
intention of the designer. Some designers,
when they sell a pattern, make it pretty
clear that their designs may not be knitted
for resale. Others may be silent on the
subject. Whether or not your purchase
of a pattern authorizes you to make widgets
for sale depends not only on copyright
law, but also on contract law -- and a
dissertation on contract law is way beyond
the scope of this article.
In the end, it's safer to err on the side
of caution, and answer 'yes.' Yes, you
should ask permission from the copyright
owner first, or failing that, get a proper
legal opinion whether you need to get
that permission. What's the worst that
could happen? The copyright owner says
'no,' so you go on to design and sell
your own original whazzits instead and
make a small fortune. Your friends turn
green with envy.
Conclusion
We've only covered the basic elements
of copyright. It only gets more complicated
from here.
To recap the moral of this article:
[1] Lots of stuff is protected by copyright.
Some stuff isn't.
[2] Assessing copyright infringement is
a subjective question that depends on
the facts of each individual case. Don't
expect anyone to diagnose a copyright
infringement problem for you over e-mail
or a phone conversation.
[3] If in doubt, ask the copyright owner
for permission, or get legal advice from
a qualified attorney, or both.
If you have concerns about the potential
consequences of your actions, you should
consult a qualified attorney in your own
country first. Keep in mind, though, that
intellectual property law is usually treated
as a specialty area. Your typical general
practice lawyer and your average legal
clinic staffer usually doesn’t have
education or training in this field, and
would have to engage in a lot of research
before they’d be able to provide
you with a reliable answer. If you try
a little legal research on your own, be
aware that the answers are not as straightforward
as the statutes might lead you to believe.
If you want more information, try surfing
these links:
National copyright
offices
United
States
Canada
United
Kingdom
Australia
National intellectual
property offices
United
States Patent and Trademark Office
Canadian
Intellectual Property Office
The
Patent Office [United Kingdom]
IPAustralia
Free
legal research
Copyright legislation [these sites purport
to maintain up-to-date information, but
it’s your responsibility to make
sure they’re really current]:
United
States Copyright Act at Cornell University
Canadian
Copyright Act at the Department of Justice
UK
Copyright, Designs, and Patent Act 1998
and related laws
Australian
Copyright Act 1968 at the Attorney-General’s
Department ]
Also check out the international Legal
Information Institute websites, which
provide links to cases and legislation:
Legal
Information Institute [hosted by Cornell
Law School]
Canadian
Legal Information Institute
British
and Irish Legal Information Institute
Australasian
Legal Information Institute
Lawyer listings
Contact your county, state, or provincial
law society for help on finding the right
lawyer in your area.
A little light offline
reading [your best bet is a law school
library]
U.S. copyright law: Nimmer, ed., Nimmer
on Copyright [Matthew Bender, looseleaf
service]
Canadian copyright law: McKeown, Fox on
Canadian Law of Copyright and Industrial
Designs [Carswell, 2000]
U.K. copyright law: Skone James et al.,
ed., Copinger and Skone James on Copyright
[Sweet & Maxwell, 1991]
Australian copyright law: Lahore, Copyright
and Designs [Butterworths, looseleaf service]
