Since we have now reviewed some of the basics of copyright law as it applies to quilts, lets move on to another critical area, quilt patterns. There are countless patterns and tutorials available online, both free and sold for profit. Are patterns protected by copyright? What rights does the owner of a copyright holder for a pattern have? How can a quilt pattern be used by the owner of the pattern? Below is a discussion of some of the important points of patterns and copyright law.

Jack in the Pulpit Quilt Block

Just a brief disclaimer before we get started: These guides are meant as a resource. Even though I am an attorney in my day job, this information shouldn’t be construed as legal advice and I am not acting as your attorney. If you are ever faced with a legal challenge, you should contact your attorney to discuss the specifics of your case. I will always work for 100% accuracy in this information, but no one is infallible so always check with your attorney before taking legal action. This information will relate to the laws of the United States. If you live in another country, you should contact your government or an attorney to learn your rights and responsibilities as it relates to the laws of your country.

Copyright and Patterns

As we have previously established, if an individual creates an original quilt design, they are entitled to copyright protection in the design of that quilt. Now let’s say they create a pattern or tutorial, either free or for sale, based on the design of that same quilt. The copyright in the pattern, which comes into effect at the moment the pattern is created, prevents others from copying or distributing the text and illustrations describing the method for creating the quilt design. Any unauthorized copy or distribution would constitute copyright infringement.

So, there now exist two separate copyright interests. First in the quilt design and second in the quilt pattern. A pattern itself is description of a procedure, process or method of operation for making something (in this case, a quilt). Copyright does not protect the underlying method described in the pattern because that information is, by law, not an appropriate subject for copyright protection (side note: though it could be the appropriate subject of a utility patent, to be discussed in a future post). According to the U.S. Copyright Office, the copyright in the text and illustrations describing this method does not give the author any right to prevent others from adapting the described method itself for commercial or other purposes or from using any procedures, processes, or methods described in the quilt pattern. For example, you can write a tutorial on a method for sewing together Y-seams and you would have a copyright in the text and illustrations describing your method, but you cannot copyright the method itself nor could you prevent someone from using your method or teaching your method to others.

So what about selling quilts made using a pattern? Can a pattern author restrict this? Is it illegal?

I could not find any case law specifically on this topic. There are some arguments on other sites I have read that say the first sale doctrine allows you to sell anything made with a pattern. The first sale doctrine (17 U.S.C. § 109) provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. So let’s give an example. I have legally purchased a copy of Tula Pink’s Space Dust Quilt pattern. I make a quilt using the pattern and decide that I no longer have a future use for the pattern so I decide to sell the pattern to my friend. The first sale doctrine protects my right to sell the pattern. So does the first sale doctrine protect my right to sell the quilt I made using the pattern? I would say no, because the pattern itself and not the resulting quilt is the appropriate subject of the first sale doctrine.

I would argue, though, that by creating and distributing a quilt pattern with instructions on how to create the quilt, the author gives implied permission for those possessing a legal copy of the pattern to create a quilt based on the quilt design described in the pattern. This means that when someone creates a pattern or tutorial, they are implicitly extending their exclusive rights in their original work to make copies and derivatives. Otherwise, why would you ever buy a pattern if you were not allowed to make the quilt featured in it? Also, according to the U.S. Copyright Office, an author cannot prevent others from adapting a method for commercial purposes. That is because copyright protection does not extend to any idea, system, method, device, name, or title. (See Ideas, Methods, or Systems). A quilt pattern, in essence, is simply the description of a method and therefore anyone can make and sell quilts using the author’s pattern, without limitation, including direct copies and derivative works.

Patterns, Standard Terms and Licenses

So how does this relate to standard terms and licenses? There are many sewing pattern designers and manufacturing companies that include language on their patterns such as, “for personal use only,” intending that the purchaser will not produce and sell a product from their pattern for commercial gain. Or a pattern designer may offer a “limited commercial license” or a “license to sell”, usually at a cost above the price of the pattern, to allow the pattern owner to produce and sell products using their pattern.

Standard terms, such as “for personal use only,” presented on or within product packaging present special problems with respect to contract formation. One court has held that if a purchaser is unaware of contract terms printed on the box because the transaction was conducted over the telephone, with no mention by the seller’s representative of the license terms, such terms were not binding on the purchaser. (See Step-Saver Data Systems v. Wyse Technologies, 939 F.2d 91 (3rd Cir. 1991). This could  be the same for a downloaded pattern or a pattern purchased through an online retailer. But even if the purchaser was aware of the term before purchase, many courts have deemed these “shrink-wrap” terms to be contracts of adhesion, because the purchaser does not have the power to negotiate or modify the terms of the contract.  And, as stated above, once someone legally possesses a copy of the pattern, under copyright law they are not restricted from using the methods described in the pattern for commercial purposes.

So what about license agreements? License agreements are contracts in which a licensor (copyright owner) would grant the licensee the right to produce and sell goods using their pattern. There may even be an agreement of exclusivity, allowing only one or a few licensees to produce products using the pattern and thus potentially increasing the value of the license agreement. In exchange, the licensee usually agrees to some conditions regarding the use of the licensor’s pattern and agrees to make payments known as royalties. License agreements can be valid, but these are usually seen as complex contracts that require the negotiation of terms between the parties. Also, the purchase of a license agreement above the existing cost of the pattern would have no additional benefit to a purchaser, since as we discussed above, once someone legally possessed a copy of the pattern, there is no restriction on using that pattern for commercial purposes.

So I believe that a pattern designer has two basic options. They can offer their pattern for use on a licensed basis to those interested in producing the item for personal use or resale. In this case, they would retain greater control over their pattern because they can negotiate the terms of the license and choose with whom they wish to enter into licensing agreements. Because the negotiation process may be complex and require the drafting of a contract, the licensor and licensee may both want to hire attorneys. In the second option, a pattern designer can offer their pattern for general sale and simply figure the potential resale of quilts made with that pattern into the overall sale price of their pattern. But you can’t have it both ways.

Next time

In the next installment of this series, I will discuss ownership of a copyright as it relates to quilts and quilt patterns.

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15 Responses to Quilting and the Law Series: Copyright and Patterns

  1. howtobejenna says:

    Ha ha – obviously I am re-reading these posts today as they are hitting closer to home than I’d like. So if there is a quilt pattern and someone creates the exact same quilt pattern, using different language and pictures but leading toward an identical product, what are the rights of the original pattern author? xoxo

    • Jen Jen says:

      As long as you have a copyright for the original design, then it would be an infringement. But if your design does not meet the minimum standards for originality, then you don’t have a copyright and you have no recourse against the other pattern author. Given the vast number of quilt designs already in existence, it is hard to meet that minimum originality standard. Sorry!

  2. Shayla Sharp says:

    This is a great article, very clear and much needed. Thank you for taking the time to explain this complex issue in a way the non-lawyers can understand!

  3. Paris says:

    Hi Jen…
    I have a question….it’s a little intricate.

    Provo Craft is a company that makes a machine called the Cricut that uses small cartridges to cut out patterns/templates that when put together these patterns/templates create images. That is what the machine and the cartridges are made for and intended to do. Thousands of people purchase the Cricut and the cartridges, make the images and then make banners, cupcake toppers, and other party supplies and then they sell them. Cricut has licensing agreements with Disney, Hello Kitty, SpongeBob, and others and makes these cartridges that they sell to the general public. Cricut then lists an Angel Policy on their website stating that people have the right to make up to 10,000 images to sell but no more than that. They also state that we cannot use the Disney, Hello Kitty or other licensed images to sell. Those of us who buy their products only find this out after we buy, open, make, and try to sell them.
    I argue that I was not in on the negotiating so I am not bound to the contract between Cricut and Disney or Hello Kitty, etc. In addition, patterns such as these are not copyrightable so how can they then tell us that what we create with these patterns is copyrightable. I also argue that once Cricut has sold the machine and the cartridges they have put these products into the stream of commerce and that as an End User, they no longer have the rights to what I purchased. In addition, I also argue that I can use the First Sale Doctrine to sell what I make from these patterns/templates just as someone who bought a pattern for a dress and sells it. And I also argue that Angel Policies listed on their website and only available to the customer AFTER the product is bought is not a binding contract.

    I have called Cricut’s legal department to ask them specifically how they justify their Angel Policy and defend all of these things I am stating but they refuse to call me back.

    Can you clarify any of this for me?

    Thanks for any help/clarification you can offer…
    Paris

  4. You rock! Thank you SO MUCH for putting together and sharing this information in a way that a layperson can understand it. I am a new pattern designer and this information helps me understand copyright pattern vs methods so much better than I did before. I can’t thank you enough for taking the time to share this! FYI, I found you through a link on Sara Lawson’s FB page which took me to WhileSheNaps.

    • Jen Jen says:

      Glad you found me here through Sara and Abby. I will be posting on many more legal topics, so I hope you will follow my blog and let me know if you have any questions or comments. Thanks!

  5. Ken says:

    Are there any legal problems with a quilt guild selling a CD of quilt images from their quilt show? Participants will sign a paper giving permission and stating the origin of the pattern used for the quilt or if it is an original design.

    • Jen Jen says:

      I would say that you would need to obtain permission, in writing, from the copyright holder of the quilt design. Make sure you explicitly state how the images will be used in the release form.

      • Ken says:

        Isn’t this the legal responsibility on the quilt maker (not the guild)? As fast as pattern businesses turn over and the lack of contact information on old patterns, I’d think it would be extremely difficult to get written permission from the copyright holder of the quilt design. How would the guild know if the quiltmaker had even tried contacting the copyright holder? Do you know if a lawsuit has resulted over this issue?

  6. Mary says:

    Good article! I know designers must protects their work but some of them
    can be very petty. I saw a quilt on the internet and I thought the pattern was way too
    expensive for a simple quilt. If I was to make a similar quilt for my own personal
    use making a much larger quilt and using different fabrics would I be breaking the law?
    I purchased a knitting pattern online when I downloaded the pattern
    I was furious at the T&C stating that I couldn’t
    sell what I knit (I don’t sell my knitting) That bad karma would result if I did.
    More bad karma if I gave the pattern away. Are people legally allowed to
    attach such T&C?

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    KarenP3720@aol.com

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