Copyright vs. Trademark vs. License

September 4, 2013 in Designer's Studio

1330873_27868463 With more crafters downloading electronic copies of patterns, the question of what they’re allowed to do once they have bought a pattern comes up more frequently. Back in the hard copy days, it was a little clearer because you owned a physical object, but people have a tendency to see digital copies differently and it creates a lot of confusion and frustration for both designers and crafters. Copyright is often confused with trademark and license, as well, which makes the topic even more heated.

Today I’m going to attempt to alleviate some of the confusion by sorting out what the difference is between copyright, trademark, and license, what rights both designers and crafters have in relation to them, and do my best to dispel some of the internet urban legends about copyright. Before we get started I have two caveats for you: First, I’m not a lawyer and this isn’t legal advice. Where possible I have provided links to the relevant information so you can do your own research, but if you need legal advice find a lawyer. Second, for the duration of this article I will be referring to U.S. law unless otherwise specified. If you’re not a U.S. citizen I highly encourage you to search for your country’s name along with the topic (“copyright”, “trademark”, etc.). Knowing your rights is important both for designers and their customers.

Copyright

Copyright is surprisingly simple for how much misinformation gets tossed around about it. The name says it all: Copyright means, “who has the right to make copies.” This means it doesn’t matter what the intention is behind making a copy, if you don’t have copyright, you don’t have the right to make copies*. You can read the whole of U.S. Copyright law for yourself. Copyright.gov also has an excellent primer and faq page if you want more details or something not written in legalese.

Myth #1: Copyright covers finished objects made from patterns

Copyright covers the original work, the pattern, as a literary creation . It doesn’t cover what anyone does with that pattern. Copyright alone cannot stop anyone from making finished objects and selling them or giving them to charity. I’ve seen some people say that finished objects aren’t subject to copyright because they are derivative works , but this isn’t really the case.

Derivative works still require authorization of the copyright holder in most cases. What copyright law says about derivative works is that the creator of a derivative work only has copyright on the derivative portion of their creation. For example, if I rewrote portions of a sweater pattern to change the neckline and sleeves but left the rest of the pattern intact I could, with the original copyright holder’s permission, distribute it as a derivative work but I would only have copyright on my changes. While copyright law doesn’t say anything specifically about finished objects made from a pattern, a 1934 court case (Adelman v Sonners & Gordon, 112 F.Supp. 187 SD New York) set precedent that items made based on a pattern are not a violation of copyright because it is the pattern that is copyrighted, not the result of using the pattern.

Myth #2: It’s not copyrighted unless it has a copyright notice

Copyright exists on covered works as soon as that work is created, regardless of whether it sits in a notebook for forty years or is published in a magazine. One of the biggest misconceptions is that everything on the internet is free. However, it’s exactly the opposite. Nearly everything on the internet constitutes an “original work of authorship” and therefore is copyrighted.

Why then do people put a copyright notice on anything? It is added legal protection in case copyright ever needs to be disputed. It prevents people from claiming they didn’t know it was copyrighted and it also establishes when the work was created. I’ve seen a few comments that it’s not copyrighted unless it’s registered which is not true. It must be registered to sue for infringement but not to be copyrighted. One could argue the semantics of the word “copyrighted” but suffice it to say that all the same legal rights exist regardless of whether the copyright is registered.

Myth #3 It’s not copyrighted if it is free

How the holder of the copyright chooses to distribute their work has no affect on their copyright. What this means for free patterns is that you have the right as an individual to own a copy for personal use due to license (more on that in a bit), but you cannot reproduce it and put it on your own website, or even print out copies and give them away. The right to “make copies” stays with the creator and doesn’t transfer even if they choose not to charge for it. If you do want to share a great pattern, the safest way to do so is to share the link.

Myth #4: I’m American so anyone using my pattern is subject to U.S. copyright laws

U.S. laws apply to U.S. citizens. Citizens of other countries must follow the copyright laws of their country, which could be more or less strict, with respect to crafting patterns. While the U.S. does have agreements with some countries regarding copyright, there is at present no such thing as international copyright.

Myth #5: It’s okay if I give someone else a copy of a pattern as long as I don’t charge them for it

While to some degree copyright law is about intellectual property, it has nothing to do with money. It has to do with the right of the creator to dictate how their work is distributed. Money makes the world go ’round, so of course people are a lot more likely to go to court when they think a violation of copyright is taking money out of their pocket, but it doesn’t have to be about financial loss. Copyright, at its core, still comes down to who has the right to make copies and if you’re not the copyright holder, that’s not you.*

* There are a few exceptions such as showing a movie in a classroom for educational purposes.

Myth #6: Stitch patterns cannot be copyrighted

This one is partially false. Copyright covers a very specific set of things. According to copyright.gov: “Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.” What’s important here is the “may protect the way these things are expressed” portion of the phrase. When someone writes the pattern for a stitch, that pattern is copyrighted as a literary work, meaning you cannot reproduce it exactly. However, the idea of it is not copyrighted which means you are welcome to express the same idea in your own way. That being said, there are legal precedents that acknowledge there are a limited number of ways to do a certain thing.

By extension, it could be argued that patterns themselves cannot be copyrighted, but as of yet all the legal precedent were cases based on enforcing copyright of a pattern vs. the finished object and not someone reproducing the pattern itself. However, regardless of whether it cannot be copyrighted as a “method of operation”, it may be copyrighted as a literary work (or artistic work in the case of charts). According to Copyright.gov’s FAQ: “Where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection.” I’ve seen a lot of arguments that knitting and crochet patterns cannot be copyrighted because sewing patterns cannot be copyrighted but I would argue that most sewing patterns don’t meet this criteria whereas most knit or crochet patterns do.

Copyright vs. Trademark

I think the confusion around trademark comes from the vernacular, “It’s is my trademark”, meaning, “It’s that thing I do to try to be unique.” However, in the legal realm a trademark is a very specific thing with a specific purpose. A trademark is anything used to identify a brand for the purpose of distinguishing your products and services from someone else’s. Unlike copyright, trademark does not automatically exist, hence the term “registered trademark”. Another difference is there is such thing as international trademark law.

Additionally, not everything can be registered as a trademark. There are fairly strict rules about what can be a trademark, but more importantly about how a trademark must be used. In order to maintain a trademark, registrants have to periodically prove that they are using whatever they registered as a trademark by showing where they’ve used it to promote their business. The primary purpose of registering a trademark is so that people can’t hijack your advertising and reputation by using your brand “identity”.

Now, how does this apply to crafting patterns? For starters, finished objects aren’t subject to trademark even if the designer has a “signature style”. The other big deal is if something is trademarked (like the logo of your favorite sports team) you can’t distribute it in a pattern. I’ve seen comments that it is a violation of trademark to make designs that include pictures of a favorite cartoon character but that cartoon character is more than likely not a trademark of the company. However, the pattern would be a derivative of the cartoon and therefore subject to copyright laws, which still makes it illegal unless you got permission.

Licensing: Filling in the Gaps

Although it can sometimes seems like they’re trying to make it so, the government really cannot make laws for every situation. This is where licensing comes in. A license is a legal contract between two parties. It allows the people in the agreement to make their own rules up when there aren’t laws that apply so that all parties know what they can do. License is used to patch over holes in things like copyright and trademark.

For example, what if you wanted to let someone make copies of a pattern but didn’t want to give up your copyright? Simple: you give them a license to do so. In this case the license would be a legal document that, hopefully, should spell out exactly how the non-copyright holder can produce and distribute copies. However, licenses do not need to be explicit. For example, by posting free patterns on my website I’m giving people an implicit license to own a personal copy of the pattern. However, a license can state anything it wants as long as the terms are legal. It is a binding contract so by agreeing to accept the license you accept the terms of the license.

If I put a license on my patterns and you purchase a pattern under the terms of that license then you are legally required to abide by those terms even if they are not covered by any known laws. If you’ve ever had a student copy of a piece of software you probably accepted an agreement that said you would not use it for any commercial work. Similarly, if a designer wanted they could create a license for their patterns that say that it can’t be used to produce items for sale.

The Golden Rule

I think regardless of the legal implications, the most important rule to follow is to be a good person by respecting other people. Be reasonable, be kind, and be fair and we don’t need to know what the law says.

I Am the Boss

August 27, 2013 in Designer's Studio

2013-08-27 10.42.54

I am also the web developer, the photographer, the the graphic designer, and even the gal who makes the tea. One of the biggest differences I’ve noticed since my decision to become a self-published, professional designer is how many more jobs I have. It takes so much more work to make a pattern that I think is worth asking money for, because I feel like I need to earn it.

A typical day looks like this: I get up an do yoga and have a shower, then make tea while my computer is booting up. I check my email first thing.  Then I spend about an hour perusing half a dozen social media outlets to see what my current- and someday-fans are up to.  After that, I pop open my favorite To Do list app (Out of Milk) and make my list for the day.  I tend to keep lots of lists because it’s the only way I can manage all of my many jobs and not feel like I’m going to forget something important.  At the beginning of the day I go through my lists and I pick the items that I think I either have time for or are the most priority for the day and then move them into my “Today’s To Dos” list.  Today my list looks like this:

  1. Check on pattern testers for my Poofy Sheep pattern test
  2. Write a blog post for the Designer’s Studio column
  3. Try to come up with a cheap/permanent setup for my photography equipment
  4. Create a banner for my PayPal site
  5. Spend an hour or so cleaning up tags on blog posts.
  6. Work on my next design with whatever time is left in the day.

This is sort of the short version, but it’s also a good representation of what every day looks like for me as an independent designer.  I tell myself that some of these tasks will get better but a lot of the work of designing is on going.  I feel very pleased right now that I have both a pattern in testing and a pattern in design.  I’m hoping by next week to have a pattern in testing, a pattern in design, and another beginning its first round of marketing.  There will always be blog posts to write, emails and social media to check, and photos to take.  There is never a lack of work, only a lack of time and energy.

I am strangely okay with this.  When you only have one job it can get dull.  To some degree I have to follow my priorities, but if I’m not feeling the creative juices that day I can do something more mundane like work on search engine optimization or analyzing sales data.    There are some aspects of this work that I find more interesting than I would have guessed, like marketing.  It’s been so interesting to learn consumer psychology.  All I know is that right now, I’m happier and having more fun working than I ever have before.

So, fellow designers, what do you like about being a designer?