There is a lot of misinformation being bandied about regarding knitting patterns and how copyright applies to them and the finished objects made using them. For a long time I've wanted to post something here about the topic with accurate information. I do not feel that my writing skills can do the topic justice, so I've asked someone who is knowledgeable on the subject to please write a guest post about it for my blog. Evelyn Uyemura, author of the blogs CopyKnit and Lost the Thread, very kindly obliged. Thank you Evelyn.
Some Thoughts on Copyright by Evelyn Uyemura
There are many controversies in
the world of knitting about copyright and what rights it gives to knitting
pattern designers. This article is written with US law only in view. Other
countries have other laws. I am not a lawyer. The opinions expressed here are
just that: opinions—hopefully well-informed opinions based on careful reading
of copyright information from the US Copyright Office.
So, let's start at the
foundation. Copyright law in the US
is based on the US
Constitution
Article I, Section 8, Clause 8 says:
The Congress shall have power...
To promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective Writings
and Discoveries
This clause covers both Copyright and Patent, the first for authors and the
second for inventors, and the purpose is that by passing laws that guarantee
that authors and inventors can profit from their creations for a certain time
period, they will continue to create, and knowledge will be advanced.
What Can Be
Copyrighted?
Under US law, every work of writing is automatically covered
by copyright as soon as it is written. This post, for example, is now
copyrighted to me, whether I register it or not, and whether I mark it with a
copyright sign or not.
In addition
, songs,
sculptures, architectural works, video and phono-recordings, and ship hulls can
be copyrighted, among other things. But with the exception of ship hulls,
utilitarian articles are
not subject to copyright.
Useful articles are exempted
from copyright. And basically, all items of clothing and accessories are considered
to be useful articles.
When it comes to knitting, what this means is that patterns (ie written
instructions for how to make a sweater or pair of mittens) are copyrighted.
Individual stitch patterns are generally agreed to be not copyrightable,
in the same category as recipes,
but the written instructions that tell you how to make a finished object are
copyrighted, automatically. (Older patterns may have fallen out of copyright,
but that's another subject.)
However, although a
pattern is copyrighted, the actual item of clothing that it
describes how to make is not copyrighted. No item of clothing, whether a Vera
Wang wedding gown or a baby's diaper cover, is copyrighted. No one owns any
look or style or combination of elements that make up clothing. Fashion
designers who work for large-scale manufacturers do not own rights to their
designs, and neither does a home knitter who has created a clever pair of
booties.
If a fashion designer or sweater manufacturer publishes a picture of her
design, or sells her item in a shop, there is nothing at all to keep you or me
or another manufacturer from looking at it, figuring out how it was made, and
reproducing that same look to the best of our abilities. This is often referred
to as reverse-engineering, and the new article as a knock-off.
Reverse-engineering and
knock-offs
are completely legal in the US. If you see a hat you like in a catalog, you
are free to use all your skills to make one for yourself.
So far, so good.
Everyone seems to enjoy copying some high-priced hat sold at a fancy-pants
store and making it out of even nicer materials for half the price.
The flip side of this coin is that theoretically at least, a high-priced store
could see your cute little hat on your knitting blog or on ravelry.com and copy
you! And mass-produce them! In
China!
And make a million bucks! And where's your cut???!!!
So let's say that you posted just a picture of your hand-knit original hat, and
another designer liked your idea and copied it. And she is now selling a hat
just like yours, whether through Walmart or Anthropologie, or in her etsy.com
shop. Do you have a complaint? Has she infringed on your rights? Are you owed a
cut?
The answer is no. Why?
Because fashion design is not copyrighted.
You can copy the big boys, and the big boys can copy you.
But, But, But….
So right away, someone says, ok, maybe not copyright, but maybe something else
applies here. Maybe I should have patented my hat. Short answer; not gonna
happen. Long answer: get a lawyer and go for it (and it's still not gonna
happen. Unless your hat turns sunlight into energy or something, it's not going
to be patented. Patents are for processes. Not for ordinary items of clothing,
no matter how cleverly put together they are.)
Maybe something else applies? Trademark? Trade dress? Again, the short answer
is no, they don't apply to fashion design, or the design of clothing. Copying
someone else's trademark, such as putting the label Gucci on a bag that is not
Gucci's is trademerk infringement. Making a bag that looks like Gucci's is not.
(Incidently, using the name Gucci, or even the name of a knitting designer, in
your advertising is unwise, as you may be infringing on the trademark. Thus the
desire to “give credit” may backfire.)
So, okay, here's what we know for sure:
- Anyone can copy anyone else's
design, style, look, shape, colors, and so on, because the design of
clothing is all public domain, no one owns any of it.
- Patterns (ie instructions)
for how to make a knitted item are copyrighted, and the set of
instructions cannot be copied.
So this is where the topic gets sticky.
Does Copyright Cover FOs (Finished Objects)?
So we know that the design of clothing is
not
copyrightable, and we know that knitting patterns, as written expression,
photos, charts, etc,
are copyrighted.
So what happens when I buy a knitting pattern and make a sweater or diaper
cover or some other useful object by using that pattern?
Perhaps the pattern says: "Copyright Diana Designer, All rights
reserved."
Does that mean that my FO (Finished Object: the sweater, or mittens or diaper
cover or whatever) is somehow under the control of the designer?
When the designer says, "All rights reserved," what does that mean?
Can the designer tell me that the pattern is for my personal use only? Can she
tell me that I can make a limited number of diaper covers from it, or that I
can make as many as I want but only for my personal use? Or that I cannot sell
my sweater? Or that I can't sell a hundred booties from her pattern, on etsy,
or at craft fairs?
This is perhaps the most controversial aspect of copyright as it applies to
knitting. My answer is based on my own logic and my own understanding of what
copyright law says. I am not a lawyer. I am an English teacher by profession
and a knitter and small-time designer by hobby. I do not sell any hand-knits
not do I ever intend to. I do sell some simple patterns. I believe that my
answer is an honest attempt to apply what the law says to this question.
So let's take a step back. Every item of clothing that you own was designed by
someone. Does that designer get a say in what you do with clothing you bought?
Can she tell you that you can't sell it at a yard sale? What if you were a
famous person and you wore a dress and then donated it to a charity and the
charity auctioned it off and raised a large sum of money based on the fact that
you had worn it? Would you need to contact the designer for permission?
I think we can easily say that no, the designer, once she designs and sells an
item of clothing, has no say in what you do with it at all.
So how about a sweater that you bought a pattern for? In this case, you paid
for the pattern and then you also bought yarn, and you made the sweater with
your own two hands, using your own skill and creativity. Does
that
designer have a greater hold on the sweater than the designer of a store-bought
sweater has on a manufactured one?
My answer is: of course not! In fact, if anything, she would have less of a
claim, since you contributed as much (or more) to the Finished Object as she
did.
But the more fundamental reason that the designer has no say in what you do
with Finished Objects is that copyright does not apply to clothing. Not at all.
Not to couture, not to knock-offs, not to hand-knit mittens.
If the copyright on the pattern does not extend to the actual knitted object in
the first place (and it clearly doesn't), then the only Intellectual Property
rights that the designer has is to the instructions. If she had made a sweater
herself, with her own hands, using her own original ideas, that sweater would
not be covered by any kind of copyright or other design rights. So how can the
sweater
you made give her some sort of rights?
The obvious answer, to me, is that it can't.
(Are we sure that copyright does not somehow subsist in the sweater? Is the
sweater maybe a derivative work? I argue that it cannot be. If following the
instructions were equivalent to copying the pattern, then it would be illegal
to even make the sweater in the first place, which is absurd. And sweaters, no
matter how they were created, are not ever copyrighted. So the designer's
copyright cannot have been transferred into your sweater!)
So what does this mean? I think it means that if you have a legally-acquired
pattern, you do not need anyone's permission to knit the item once, or a
hundred times, anymore than you need permission from an author to read her book
a hundred times.
And statements that say: "This pattern is for personal use only" do
not carry any legal weight. Copyright law forbids you from making copies of the
pattern, so if the statement is intended to mean "Don't give copies of
this pattern your friends," it is true. If it is intended to mean
"Don't give these mittens to your friends," it's not true.
And how about if the pattern directly states, "You may not sell objects
knit from this pattern"?
Well, does the designer own rights to the mittens or diaper covers or sweaters
you made using her pattern? The answer is no. She controls the pattern (ie the
instructions) through her copyright. That copyright does not apply to actual
items of clothing. So can she tell you what you can do with them? Legally, no,
she can't.
But What About Licensing?
So far, we have discussed the fact that the design of items
of clothing is not covered by copyright. This led us to the conclusion that,
although a knitting pattern (words, images, charts, description, photos, etc.)
is copyrighted by the designer, that copyright does not extend to the actual
physical object that you may knit from it (assuming that it is clothing or a
household item.)
Many designers, knowing this to be the case, have looked for a way to protect
their design other than copyright. The most common work-around is to either
simply tell you on the pattern that you must not sell objects made from it, or
to formalize such a request as a "license," often referred to as a
"cottage license."
The concept of a "cottage license" is that you,
dear knitter, working at home in your own little cottage (or condo), are
allowed to produce knitted objects, but the same permission would not be
granted to a commercial manufacturer.
Here is an example of a designer who
explains her
"licenses." The designer is asking for a fee of $100 for
"lifetime" permission to knit and sell five items she designed: a Sheepy Sack
(which is a free pattern that makes no mention of any restrictions on what you
can do with the Sheepy Sacks you knit), Sheepy Pants (selling for $6.50), Sheepy
Soakers, available for $5.75 as well as a skirt pattern ($12) and Bloomers ($5).
It appears that these are very nice, well-designed patterns, and there is no
objection to the designer charging money for the patterns. This designer lives
and works in the
United
States. Her patterns do not even include any
pre-purchase information stating that she believes you need her permission to
sell finished objects from them.
This is just an example, and this designer is no better or worse than many
others out there. This was the first example that came up when I googled
"cottage license."
The question is: does a designer have a legal (or ethical) right to charge you
for a license allowing you to sell items that you knit, using a pattern that
she gave you or sold you? Do you need such a license? Can she sell you such a
license?
A person can only legally sell you what he or she owns. The old trick of
selling some rube the
Brooklyn Bridge is fraud for the simple reason that the guy
doing the selling doesn't actually own the
Brooklyn Bridge.
Could he sell you a "license" that allows you unlimited use of the
Brooklyn Bridge? A
lifetime license to
cross the Brooklyn Bridge? Not unless he owns the
Brooklyn Bridge!
So here's the rub: Does the designer of baby pants own those baby pants that
you knit? Does her copyright apply to those pants?
The answer again is No. Because clothing items in the
US are not
covered by copyright, there are no Intellectual Property rights that the
designer owns except in the pattern itself. She could license you to produce
copies of the pattern if she chose to.
But she cannot avoid the implications of public domain (which applies to clothing
design of every kind) by adding licensing language to it. She is attempting to
sell you something that she does not own (the rights to a pair of baby pants.)
Still not convinced? Ok, well suppose that not just knitting designers, but
actual manufacturers of clothing decided to "license" their clothing.
They add a tag to your pair of jeans that says, "You may not sell these
jeans. These jeans are licensed for your personal use only." Perhaps it
bothers the designers and manufacturers of jeans to see their products sold at
Goodwill for $7. They think the price should be higher, and they also think
they should get 10% of it. Can they do that?
Of course not. (If they could, they would!)
Can the writer of a copyrighted book add a "license" that says that
you may not re-sell the book? No. And this one has been decided by the Supreme
Court. It's called
the
First Sale Doctrine, and it was decided back in 1908. In that case, a
publisher attempted to control the price at which its books could be sold. The
court said that Copyright did not give a seller any rights over what was done
with an individual copy of a book that they sold, as long as the book itself
was not reproduced.
But maybe making a sweater is making a "copy" of the copyrighted
pattern? No. It can't mean that. Because sweaters are never copyrighted in the
US. A copy of a pattern is still a pattern. A sweater is not a pattern, just as
a map of
England is not
England.
So do you need permission or a license in order to make multiple items from a
single pattern? No, you do not. And after you make those items, who owns them?
You do. Does someone else own IP (Intellectual Property) rights in the items?
No. They are not Intellectual Property. They are clothing. And you can sell
clothing that you own, without any permission or license from anyone.
What Does the US
Copyright Office Say about Selling Finished Objects?
Lest some think that I am going out on a limb by expressing
the opinion that copyright protection does not extend to FO that are made from
knitting patterns, I offer you an email from the Copyright Office in answer to
a direct question on the subject. (I am not the original recipient of this
email. It was posted by a knitter on ravelry.com):
Copyright in a pattern normally pertains to the pattern itself, i.e.,
to the written instructions, diagrams and/or pictures, not to the object
that is constructed from the pattern.
If the pattern, however, includes original artwork that would be
incorporated into the work that is made, then a person may need permission to
use it commercially. An example of that would be a knitting pattern depicting
original artwork. An example of the opposite would be a dress pattern: the
dress made from the pattern is not subject to copyright protection.
Here are two examples where both patterns, i.e., the written instructions
and artwork, are protected by copyright, but only one of the products made from
the patterns would be protected.
1.) A pattern for a sweater made with standard knitting stitches, such as
a cable stitch or a popcorn stitch, is protected by copyright; however, the
sweater made from the pattern contains no copyrightable artwork because it
consists of standard stitches, no matter how attractive the sweater is.
2.) On the other hand, a pattern for a sweater that depicts original
artwork — let’s say a mountain scene with a deer — is protected both in the
form of the pattern and in the form of the sweater. The artwork on the sweater
is protected by copyright.
In the first instance, a person using the pattern can produce
sweaters commercially, but not be infringing a copyright because the
distribution of the sweaters is not distributing any copyrightable authorship.
In the second example, by distributing the sweaters, the person is also
distributing copies of the original artwork and would normally need permission.
(I have added paragraphing, bolding and italics and numbers
in order to make the distinctions a little easier to perceive. I have not
changed any wording. Since this email was written in the course of employment
by the US
government, it is not itself subject to copyright.)
It is important to point out, as this reply does, that there can be
copyrighted material in the form of knitwear. In the example given, an original
image of a deer and a mountain created by a designer and then included in a knitting
pattern would be copyrightable as artwork. That same artwork could be screen
printed onto a t-shirt, printed on a mug, or made into a poster. Doing any of
those things with another person's art work is an infringement of their
copyright.
The distinction that Copyright law makes is that utilitarian objects, including
all clothing design, is not subject to copyright, but artistic elements that
are separable from, or at least conceptually separable from, the useful object
can be copyrighted. So no one can copyright a mug, no matter how shapely. But
they can copyright a picture that is applied to a mug.
Here's
a legal document explaining the basic law and several cases drawn from it.
Here's
another, slightly more light-hearted explanation of how current law treats
clothing design and that discusses possible ways the law could be changed.
(Until the law is changed--and it hasn't been as of 2012--no one should feel
guilty for copying fashion design, which includes the design of knitted
wearables.)
One more caveat: while sweaters, skirts, diaper covers, hats, mittens, socks,
blankets, and so on are clearly not copyrightable in and of themselves, it is
possible that some knitting, such as toys, could fall into the realm of
sculpture rather than utilitarian objects, and so could be copyrighted as
objects.
So where does all this leave us?
Patterns (instructions) for knitting are copyrighted, and
should not be copied (except for making an extra copy for one’s own use). This
is true even if the pattern is free. Only the owner of the copyright is
authorized to make copies. Realistically, if you print out two copies of a free pattern from a website and share one with a friend, there is no harm done. But if you
make a copy of a paid pattern for a friend, you are depriving the designer of
income that is rightfully hers.
Once you have a legally-obtained copy of a pattern, you may
use it as many times as you choose, and you may do whatever you want with the
finished items of clothing or other useful items—including selling them. You do
not need permission from the designer to donate them or sell them or anything
else.
Happy knitting!
Evelyn Uyemura
