What does the US Copyright Office Say About Selling FOs?

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.)

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. If you buy a pattern, you can make a FO from it, but you may not be allowed to distribute it to others.

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--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.

However, here is an example of a case which went to court, in which a pattern for a craft item was distributed, and when a buyer used that pattern to make and sell Finished Objects,they were sued. The designer lost the case, even though the item was far from useful:

The United States District Court for the Eastern District of Michigan held that a “witch crashing into a tree” design enjoyed only a narrow scope of protection....

In that case, the plaintiff had created a two dimensional textual and graphic work, a craft project, that gave diagrams and illustrations instructing readers in how to make a Halloween decoration that depicted a witch, on her broomstick, crashing into a tree.

While the two-dimensional project instructions [ie the pattern] were entitled to protection, the court declined to find infringement against a defendant who manufactured and sold the finished sculptures. To do so, the court held, would be tantamount to protecting the “idea” of the crashing witch, as opposed to protecting the expression embodied in the instruction form. Id. at 615. “[D]iscounting trivial variations, there is essentially only one way to express the idea of a witch crashing into an object while flying on a broom; thus, under the merger doctrine, since the idea and its expression are inseparable, the copyright is no bar to copying the expression.”

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.

Does Copyright Cover FO's?

So based on the previous post, 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 means of 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? If you were a famous person and you wore a dress and then donated it to a charity that 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 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 says, "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.

Next post: Ah, but what about licensing?

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 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 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.

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 infringement. Making a bag that looks like Gucci's is not.

So, okay, here's what we know for sure:

1. 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.
2. 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. I think the next point should be in a separate post.

Footnote: From the US Copyright law:
"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

(Thus, for example, Einstein's theory of relativity cannot be copyrighted, though the book in which he explains it is.)

What is CopyKnit?

My intention in starting this blog is to have a place to write about US Copyright law as it applies to the knitting community. I have done a bit of study on the topic, and have posted frequently on Ravelry.com about coipyright. But those threads often get heated, and sometimes end up locked. So I want a place where I can save the things I have written and be able to access them easily. I want to be able to collect links and other information in one convenient spot.

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.