Tuesday, March 15, 2011

Licensing and Knitting

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 a sample "cottage license." The designer is asking for a fee of $50 for "lifetime" permission to knit and then sell three 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) (also here), and Sheepy Soakers, available for $5.75.

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. But on her website, she has information about her "licenses."

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 is 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 what is public domain (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.

(So maybe this means that 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.

5 comments:

  1. I love your blog!! It's like talking to a wall, though, isn't it?

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  2. In regards to "the pattern itself" - how does the knitter know that their pattern design is original, how do they claim it as their own? Maybe my great grandmother used the same pattern 100 years ago. Very grey area.

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  3. Late to the game here, but to respond to the post above--a pattern (ie set of instructions) only needs to be "an original work of authorship," as does every written work. It does not need to be searched to determine whether anyone else has ever made a similar (or even identical) object before. As long as the designer is honestly stating that she wrote the instructions herself, then the pattern is copyrighted. If your great grandmother made the same thing 100 years ago, it doesn't matter. If we were talking about patents, the answer would be different. But if I set out tonight to design a baby hat, as long as I do it myself, it doesn't matter if your grandmother also came up with the same design 100 years ago. That's because it's not ever the hat that is copyrighted--it's the instructions, and unless I literally copy the instructions word for word, I am not infringing on anyone else's copyright.

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  4. If the pattern states "not to be used commercially" does that prevent the use of the pattern for making goods to be sold? Thank you!

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