I have been seeing a lot of posts by other bloggers lately about concerns over copyright infringement, such as from Lee at Freshly Pieced. After reading through posts and reader comments, there seems to be so much misinformation in this area. I have been toying for a while with the idea of creating a series on law and quilting, so I have decided that now is as good a time as any to start.
Since copyright law seems to be the issue of most concern in the quilting community right now, I have decided to start with that. My hope is to present this information in plain language so that it can be understood by someone with no formal legal experience. But for those a little more experience, I will also be providing basic legal citations for statues, regulations and judicial cases so that you can delve in a little deeper if you wish.
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.
First, it is important to understand exactly what a copyright is, why it is important and what qualifies for copyright protection. A copyright is a form of legal protection granted by the U.S. government for the creators of “original works of authorship.” This protection grants the author with certain exclusive rights to:
- Make copies
- Prepare derivative works
- Sell or distribute copies
- Display the work publicly (See 17 U.S.C. § 106)
Anyone else wishing to exercise these rights needs to have permission from the author. The author may also transfer these rights to another or authorize another to exercise these rights on their behalf. Any transfer of exclusive rights is not valid unless the transfer is in writing and signed by the owner of the rights or their authorized agent. A copyright can also be inherited by another upon the death of the author or owner, either by will or intestate (the process of inheritance when no will exists). (See 17 U.S.C. §§ 201-205)
To qualify for copyright protection, a work must be independently created by the author and it must possess at least some minimal degree of creativity. Only original works of authorship are protected by copyright. “Original” means that an author produced a work by his or her own intellectual effort instead of copying it from an existing work. It is possible for two people to create similar works independently and both works could qualify for copyright because they were both original to the creators. The original work must be “fixed in any tangible medium of expression” (quilts count) and fall within one of the Copyright Act’s nine categories (See 17 U.S.C. § 102(a)). Quilts are protected under the Copyright Act as “pictorial, graphic, and sculptural works.” (See 17 U.S.C. § 101)
Useful articles and copyright protection
I would say that most quilter’s view their work as art. But the law views a quilt as a “useful article” because it has a utilitarian function beyond just artistic expression (i.e. covering a bed to keep you warm while you sleep). Other examples of useful articles include clothing and furniture. Copyright law does not protect the utilitarian aspects of useful articles (See 17 U.S.C. § 101). Therefore, a useful article, such as a quilt, is not protected by copyright law unless it incorporates features that can be identified separately from the utilitarian function. These separate features can be physical or conceptual. Thus a useful article can have features that are both protected by copyright and unprotected by copyright. For example, a geometric relief design on the back of a chair may have copyright protection, but the chair itself cannot, even though the chair, taken as a whole, is aesthetically pleasing. (Side note: The designer of the chair may be able to enjoy legal protection through a design patent. A design patent is granted on the ornamental design of a functional item. I plan more discussion on design patents in a future post.)
It is the design elements of a quilt that are eligible for copyright protection. Several court cases have found that quilt designs are copyrightable because the design is physically or conceptually separate from the utilitarian features of a quilt. (See Brown v. McCormick, 87 F. Supp. 2d 467 (D. Md. 2000) and Boisson v. Banian, Ltd., 273 F.3d 262 (2d Cir. 2001))
Copyright protection vs. copyrighted
A work automatically has copyright protection when it is created. You are not required to register your work with the U.S. Copyright Office or publish your work in order to gain the benefit of copyright protection. There is a difference though, between copyright protection and a work being copyrighted. When you register your work, it is then copyrighted. Copyright fees are currently $35 per work and can be submitted online through http://www.copyright.gov/ There are certain advantages to registration which you might want to consider, including:
- Registration establishes a public record of the copyright claim.
- Before an infringement may be filed in court, registration is necessary for work of U.S. Origin.
- If registration is made within five years of publication, registration will establish a rebuttable presumption of the validity of the copyright in court and of the facts stated in the registration certificate.
- If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees (more money) will be available to a prevailing copyright owner in a court action. Otherwise, only an award of actual damages and profits is available to the copyright owner.
- Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.
Here is a hypothetical situation without the benefit of registration:
You write an online tutorial and do not register it with the U.S. Copyright office. Five and a half years later, someone makes an exact digital copy of the tutorial and sells it online, making a profit of $10 for each tutorial sold. They are able to sell 10,000 copies and make a profit of $100,000 before you become aware of the infringement. You hire an attorney but before he can bring suit in court, you will first have to attempt to register your tutorial with the Copyright office. Because the infringing party is also selling the tutorial and originality is unclear, the Copyright office refuses your application. Also, because you did not file within the first five years after publication, you do not have a rebuttable presumption of validity in the copyright. Your case goes to court and you now have to prove that you are the original author of the tutorial and therefore have a valid copyright. The legal proceedings are long and drown out by countless motions from the opposing party’s attorney in an attempt to get you to settle the case. You stick it out and eventually prevail in court. You are awarded actual damages, which is $100,000 but most of that money ends up paying your attorney’s fees.
Hypothetical situation with the benefit of registration:
You write an online tutorial and register it with the U.S. Copyright office within three months of publication. Five and a half years later, someone makes an exact digital copy of the tutorial and sells it online, making a profit of $10 for each tutorial sold. They are able to sell 10,000 copies and make a profit of $100,000 before you become aware of the infringement. You hire an attorney and he immediately brings suit in court. Because you filed within the first three months, you have a rebuttable presumption of validity in the copyright. Your case goes to court and you easily prove infringement. The opposing party’s attorney attempts to draw out the proceedings in an attempt to get you to settle the case, but you stick it out and eventually prevail. You are awarded actual damages of $100,000 plus reasonable attorney’s fees and additional statutory damage of between $750 and $30,000 per work, at the discretion of the court.
Copyright infringement basics
Infringement of a copyright occurs whenever anyone violates any of the exclusive rights of a copyright owner. Generally, under the law, anyone who engages in any of these activities without obtaining the copyright owner’s permission may be liable for infringement. Nevertheless, there are several limitations of the exclusive rights of the copyright owner. The copyright law provides exemptions from infringement liability by authorizing certain uses under particularized circumstances. (See 17 U.S.C. §§ 107-122)
Copyright infringement is generally a civil matter, which the copyright owner must pursue in federal court. To win a claim of copyright infringement, a plaintiff must show he or she owns a valid copyright, the defendant actually copied the work, and the level of copying amounts to misappropriation (the illegal use of property). Under the doctrine of substantial similarity, a work can be found to infringe a copyright even if the visual elements are altered (i.e. changing the colors of a quilt design). The basic test of substantial similarity is whether a reasonable person would look at two works and believe that one was copied from the other.
There is a notable copyright infringement case involving quilt designs (see Boisson v. Banian, Ltd., 273 F.3d 262 (2d Cir. 2001)). Judi Boisson was a quilt maker who created two alphabet quilts and registered them with the U.S. Copyright Office. Boisson licensed the designs for production and sale in boutique shops. Banian, Ltd. produced three similar looking quilts and also sold them at boutique shops. Boisson sued for copyright infringement. During trial, Banian admitted that they had used Boisson’s quilts as a basis for their own quilt design but they argued that their quilts were dissimilar enough that there was no infringement. The Court looked at several features of the each quilts, including the “total concept and feel” of each work and found that in some cases there was a substantial similarity between the copyrightable elements of Boisson’s quilts and Banian’s quilts. The Court found that some of Banian’s quilts infringed upon Boisson’s copyright while others did not. What do you think?
Here are pictures of a quilt designed by Boisson, entitled “School Days I” and a quilt designed by Banian entitled “ABC Navy” that the court found not to infringe on Boisson’s copyright. And here is the same Boisson quilt and another quilt designed by Banian entitled “ABC Green” that the court found did infringe on Boisson’s copyright.
In my next installment, I will discuss copyrights, quilt patterns, tutorials and licenses.