Ask a Lawyer! Knitting and Copyright #ask #a #dr


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Ask a Lawyer! Knitting and Copyright

Last month, we asked Vogue Knitting email newsletter readers and Facebook fans for their questions on copyright issues and knitting. An attorney responds.

By Jason M. Krellenstein

As a New York attorney in private practice, with many proud and committed knitting aunts, cousins and kin, I speak and counsel regularly on copyright and trademark matters relating to crafting, knitting and similar creative endeavors. Copyright law is subtle and complex; perhaps I can shed some light on common problems and misconceptions. My comments are intended to offer practical responses to the legal dynamics of fashion innovation. They are not intended as an exhaustive treatment of an evolving jurisprudence, nor meant as legal advice, nor a discussion of any copyright law other than the United States’, nor to establish or imply an attorney-client relationship.

Q: If we knit something from a pattern, can we sell it at a craft fair? We are not talking about setting up a huge commercial business, just hand knitting and putting it up for sale. Part 2: Sometimes on the pattern, people say you can’t sell what you knit. Can they do that? Some people are afraid to buy those patterns and don’t. We are not selling the pattern at the fair, just the item we knit from the pattern. People use cookbooks and make things from recipes and sell them to make money at fairs. People write music and others perform it and charge admission. [These are] different things, but things we bring up on [our] forum. It gets really heated and people get very mad. One designer said she saw something of hers on sale at a craft fair and she took the person to court and won a lot of money. People asked her to tell them more so they could verify it and she didn’t give more info, so as you can see, we are all afraid to sell anything at craft fairs.

—Daralene Dobbins

Dear Ms. Dobbins:

The short, relentlessly legal answer to the question of whether you can sell is “probably.” Copyright protects the pattern itself but does not speak to the article made from the pattern. Check the pattern (or the book or magazine or other source from which you obtained the pattern) to see if the designer included terms limiting the use of the underlying article. The litigious designer you mention may have prevailed because her patterns contained this kind of prohibition, but there is no shortage of critics who will argue, vehemently, that a publisher’s statement forbidding sale of the resulting garment is unenforceable. More difficult is locating precedent on this point. Wherever one comes out on the debate, a prudent crafter will avoid mass commercial replication of a garment derived from a pattern labeled as “non-commercial” or “personal” use. For different reasons, I would also be careful about garments that involve other kinds of intellectual property, like logos or images from movies or television. These elements may be protected trademarks of the owners.

Q: I actually have two questions, and I understand that you may not be able to address either or both of them.

Question 1: I like to “design” my own patterns, but I often get my inspiration from other patterns that I find in books or free online. What percentage of a pattern must be altered in order for it to be considered “original” work?

Question 2: I sell handcrafted items, but sometimes the patterns that I use are found free online from other crafters. Some crafters post a notice at the end of their patterns asking others to not sell what they make from the pattern. Is this a legally binding disclaimer, or can a valid case be made that the pattern itself (the actual online posting) is not being sold and the knitted item that is created from that is a derivative creation and not copyright protected?

Thank you so much for your time, and thank you VK Editors for giving us this opportunity. -)

—Luann Edwards

Owner, Raccoon Valley Designs

Dear Ms. Edwards:

There is no mathematically quantifiable, legally bulletproof yardstick to determine when a independently protectable pattern has been created. You will want to consider not just the amount of material copied, but also whether the copied portion is important to the work as a whole. There is a legitimate argument to be made that borrowing a unique, albeit small, portion of a copyrighted work pulls the borrower more closely into the orbit of infringement. While copying is not always copyright infringement, no rational interpretation of the law can ignore the critical relationship between inspiration and creation. There is a bill before Congress called the Innovative Design Protection and Piracy Prevention Act, intended to extend copyright protection to “unique” and “non-trivial” elements of apparel and apparel design.

As to your second question, my personal view is that a community-based, good faith approach to the work of other crafters respects these kinds of disclaimers, regardless of legal enforceability.

Q: How does one go about copyrighting a pattern[s]? I live in NY State. Is it a costly venture?

—Sunny

Q: I am teaching a not-for-profit knitting class, and am trying to follow directions in a book I own to teach some basic skills. I am not copying the book, but am doing my own summary of the directions for my students. I am also being careful to indicate the source of the ideas in the handouts that I am writing. Is this acceptable?

—Judy Castaldi

Dear Ms. Castaldi:

Copyright infringement requires copying of protected material. If there is no copying, or the “basic skills” material is not protectable, it may be difficult to sustain a case for infringement. That’s not to say that the means by which garden-variety facts or skills are presented—the organization, appearance or “total-concept-and-feel”—cannot be protected. But it may be that the skills you are relating are not, when separated from the text, the exclusive protected material of anyone. You should also consider that the Copyright Act recognizes a legitimate purpose for some conduct that would ordinarily be infringement. The “fair use” defense allows for use for educational purposes, based on evaluation of four criteria. Briefly, these are (a) the purpose and character of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the work and (d) the effect of the use on the market or value of the work. Within this context, the non-commercial nature of your teaching is helpful. Also helpful is that ideas in and of themselves are not protected by copyright, though the expression of those ideas may be. And again, if you think you might be infringing, the most conservative approach would be to seek permission of the copyright holder.

Q: Thank you for the opportunity to send in questions! I have one I’ve been trying to track down the answer to for ages, to no avail. May I use images from the old Vogue Knitting (in its defunct 1930s-60s Condé Nast incarnation) on my non-commercial website? (With all credit given, of course.) And what about selling items? (“Pattern from Vogue Knitting, Spring/Summer 1959,” for example.)


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