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.

 

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Copyright basics

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.

Next Time

In my next installment, I will discuss copyrights, quilt patterns, tutorials and licenses.

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24 Responses to Quilting and the Law Series: Copyright 101

  1. Vickyg says:

    What an awesome post! Thanks jen

  2. howtobejenna says:

    Thanks so much for this post and for launching this series. I have been very interested in quilt copyright in specific because of the nature of the artform: traditionally, repeated identical blocks. And the blocks have such a long history – who gets to suddenly claim a string block as MINE and then sue anyone else who creates a string-block quilt? And with my Archicoop quilt… do I feel it’s within my right to say, “I made this quilt featuring a repeated egg block and anyone else who makes an egg quilt is infringing on my work?” I don’t feel compelled to claim a repeating egg pattern as MINE, but perhaps I’m missing out on $$$$ in the future : )

    Another question for the lawyer- what is the case for making a quilt inspired by artwork from another medium? Would I be allowed to make a quilt of a soup can, or would that be infringing on Warhol?

    Thanks again for this series! I’ll be reading : )

    • Jen Jen says:

      Thanks for the comment Jenna!

      I would say that the answer to your question, like most areas of the law, is complicated.

      First, as far as medium is concerned, I don’t think that is actually relevant. I could copy a physical work of art into a digital form and then print it onto a tote bag. The medium has changed to fabric, but infringement would still exist in this case. So using a painting as inspiration for a quilt could still constitute infringement.

      Second, you can only infringe something that has copyright protection. I will be discussing the concepts of copyright ownership, copyright duration and works in the public domain in a future post, but essentially if something does not have copyright protection, then you don’t have to worry about infringement if you copy it. I could copy Da Vinci’s Mona Lisa in a quilt design because it does not have copyright protection. But whether I could then copyright my subsequent work would depend on whether the work was sufficiently original and creative, as discussed above.

      So, infringement occurs whenever someone uses all or some of the protected elements in a copyrighted work. This includes making derivative works from another’s work. A work is copied if it was made using the original as a model, template or inspiration by having access to the original work and the new work shows a substantial similarity to the original work. There isn’t any set threshold as to how much or little of another work you need to copy to constitute infringement, but most judges use the concept of substantial similarity as the primary test. But because the substantial similarity test is inherently subjective, it can vary based on the person(s) making the judgement. As you can see above, the court didn’t think that Boisson’s “School Days I” and Banian’s “ABC Navy” were sufficiently similar enough to constitute copyright infringement, even though Banian admitted that Boisson’s quilt was the inspiration for their own.

      If you take and somehow transform the protected elements of an original work, you are either create an infringing derivative work, have created an entirely new original work because there is no substantial similarity or have a defense to infringement through the Doctrine of Fair Use. Fair use is a very extensive area of copyright law and I plan to address it in a future post, but the basic principle is that you can use limited portions of a work for commentary, criticism, news reporting, and scholarly report. There are other factors relevant to fair use, but it requires more discussion than I can do here. Also, in my next post, I will discuss how copyright relates to quilt patterns and I think there is another copyright doctrine that applies to quilts made using a pattern.

      Honestly, the best course whenever you are unsure is to just get permission from the copyright owner. Verbal permission is not sufficient to protect you if a dispute arises, so make sure you get it in writing (email counts).

      Finally, I think that it is funny you have used Warhol’s soup can as your example, because Warhol actually infringed on Campbell’s copyright in their product labels when he created his famous soup can screen prints. He did not ask permission to use the images and Campbell’s would have been within their legal rights to sue. Instead, they sent Mr. Warhol a letter praising his work and thus implicitly granting permission. They must have realized that Warhol’s art was more of a boon than a detriment to their product. I mean, who doesn’t love tomato soup?

      • Tina says:

        Further to this question, I created a quilt pattern based on a knitting chart provided freely on Flickr, with the caveat that the Flickr user has a creative commons license with all rights reserved. I am unclear whether this license, which I believe has a non-derivative portion, pertains to the picture itself or informational content within the picture. So if I were to try to publish and sell a quilt pattern based on this knitting chart, for which I have determined all the necessary quilting math etc, would I be infringing on the original chart makers copyright?

        • Jen Jen says:

          Tina,

          Unless specified otherwise, the creative commons license would cover both the design of the item and the pattern (text, pictures, etc). You would have to follow the terms of the Creative Commons license for both elements. Without knowing more about the specific CC license that the item used, I can’t say much more. Hope this helps.

  3. Ann says:

    Learned a lot! Looking forward to the rest of your series. Thanks.

  4. Ginia says:

    Thank you so much for this post. It is very interesting and informative. My “Cross Hatch” quilt was inspired by a painting by Jasper Johns which hangs in the Museum of Modern Art in New York City. I requested and was given permission by the artist’s representatives to show the quilt at shows, on websites and in advertising. The permission was easy to obtain through e-mail. I always credit Mr. Johns when showing the quilt. I believe most artists are flattered when their work inspires another person to produce something creative. The important thing is to give credit and ask permission.

  5. ~Michelle~ says:

    Can you do an “overall” copyright to protect any and all content on your blog/website, including tutorials?

    • Jen Jen says:

      According to the U.S. Copyright office, copyrightable revisions to online works [website/blog] that are published on separate days [blog posts or tutorials] must each be registered individually, with a separate application and filing
      fee. Basically, each individual blog post or tutorial is considered a separate work of authorship, so register them individually. There is no way to copyright an entire website/blog because unlike a book, blogs are dynamic. Also, you cannot file for a copyright in future works of authorship that do not yet exist.

  6. Thank you for writing these articles. I am so glad I bumped into them. Please keep it comin’! Great information, and very well written.

  7. Mel says:

    Thank you for writing these — I’ll definitely share with my friends so some of this mud can start to get cleared up — I hope!

    I’m a bit confused, though, and have been about it for a while now. I wrote a pattern for a design that literally NO ONE had seen before. Not in the modern quilt world, and not in the traditional quilt world. It was incredibly unique, although it was not complex in any way. I tried to apply for a copyright for the design, and my application was rejected because neither the shape (hexagons) nor the color combination (rainbow) were unique and innovative, so I do not own a copyright for my unique design. And, unfortunately, I have now seen my design copied and sold (even on the wall of a LQS who didn’t know I was the original designer!), and I don’t feel like I have any ground to stand on, although mine was released in fixed and tangible form long before the others started to make their appearance. Yes, what they are doing is low-down and dirty, and they know it, but what can I do?

    I’m not really looking for any answers, I just don’t know if the Copyright office rejected my application in error, or if everyone who tries to write the pattern or copyright the design would face the same rejection. Any thoughts would be great. :)

    Thanks again!

    • Jen Jen says:

      There is no standard for innovation in order to obtain a copyright in a design. The design must simply meet minimal standards for originality. If the Copyright Office denied your application, then they found your design not to be sufficiently original. Originality can be a hard standard for quilt designs given the extensive history of quilt designs over the past several hundred years. You could have filed an appeal with the Copyright Office. Below is a snippet of information on the process:

      “Under title 17, the Register of Copyrights may determine that the material deposited for copyright registration does not constitute copyrightable subject matter or that the claim is invalid for other reasons. In such cases, the Register refuses registration and notifies the applicant in writing of the reason(s) for such refusal. Applicants whose claims for registration are rejected can appeal such decisions in a two-stage process. The first appeal is made to the Examining Division. If the Division upholds the refusal, a second appeal may be made to the Copyright Office Board of Appeals, consisting of the Register of Copyrights, the General Counsel, and the Chief of the Examining Division.”

      The only figure that I could find about appeals stated that between 2001 and 2002, 14 percent (55/395) of those filing a first appeal were granted a copyright and 7.6 percent (2/26) of those filing a second appeal were granted a copyright. Though it is not impossible, the chance is somewhat low.

      Given the high standard of originality for quilt designs, many would face the same rejection. It can be frustrating, especially given how much quilter’s regard this as their form of artistic expression. Sadly though, quilts are not afforded the same protections as other works of art.

  8. Annette J. says:

    I have a question. I saw a quilt that I liked on a website and I didn’t want to buy the kit. I sat down and drew on graph paper a pattern. I used different fabrics and added different things but I’m sure that anyone who compares the two will see that I used the quilt on the internet as my inspiration. I would never do this for something I would sell but I did do this for this quilt which was a gift to someone. Here is where I posted it: https://www.facebook.com/photo.php?fbid=10152408155019796&set=pcb.10152378044500815&type=1&theater and here is the inspiration quilt: http://www.connectingthreads.com/cfTemplates/InsideImages_Template.cfm?id=6283&title=Kinetics%20Quilt%20Kit&author=Connecting%20Threads&isKit=1
    I have been thinking about changing the layout from a horizontal lines to vertical lines. Would I then be able to sell it if I wished without copyright infringement?

    • Jen Jen says:

      Annette,

      Unfortunately I can’t speak to the specifics of the quilts in your case. I will say though, that I believe that obtaining a legal copy of a quilt pattern gives the pattern holder the right to make reproductions and derivatives of the quilt. Copying a quilt without obtaining a legal copy of the pattern would likely constitute copyright infringement.

      • Annette J. says:

        Thanks for replying Jen. I’m pretty sure my pattern is in no way like the original but since the end result is so very similar it would prob cause problems. Thanks for providing this information to all of us crafters! I appreciate it!

  9. This is a great series. I found you through Abby Glassenberg’s site. Thank you so much for taking the time to research these issues and write them up for us.

    I’ve wondered about creating patterns that are inspired from children’s literary works in the public domain. From what I’ve read above, it sounds like making something based upon the artwork from a particular book might be an infringement, but is it? Can you use names for characters from these works, such as Dorothy from the Wizard of Oz (if she resembles Dorothy from that book), etc.?

    • Jen Jen says:

      Jenni,

      This is a great question. It would be copyright infringement to create patterns based on literary works if they are covered by copyright protection. For example, if you made a softie pattern for a red-headed male wizard in training robes and called it Ron, the average person would know this was a direct reference to Harry Potter. This would be copyright infringement.

      In the case of Wizard of OZ, it is no longer covered by copyright protection and therefore anyone can create a derivative work related to it. There are many other common children’s stories are not covered by copyright. But be careful, because someone else creation based on a work no longer covered by copyright may gain copyright if it is deemed an original work of authorship.

      A good example of this includes Disney movies based on classic fairytales. Though ‘The Snow Queen’ (the fairytale on which Frozen is based) does not have copyright protection, Disney’s portrayal of the story using distinct characters such as Elsa and Anna does have copyright protection. You can make a Snow Queen softie, but if that softie looks like Disney’s Elsa, that would be copyright infringement.

      Hope this helps!

  10. […] some basic information on copyright protection as it relates to quilts, please see my post Copyright 101. When I first started conducting legal research regarding patterns, I realized there were a lot of […]

    • Linda says:

      Am wondering if making doll clothes to sell using commercial patterns such as Simplicity, McCalls, and Butterick falls under the useful wear category. Ironically, each of these companies appear to have copied each other—their pants patterns, dress patterns, blouse patterns, for example, are identical in shape and size for 18 inch dolls. Seems the fabric and trim I choose are what make the resulting clothes distinctive. If I use the patterns to make the clothes and do not make copies of the individual patterns do you think it is legitimate/legal to sell the actual garments created? Thanks…truly enjoy the blog articles.

  11. Leland says:

    Right here is the right blog for anyone who really wants to find
    out about this topic. You understand so much its almost
    hard to argue with you (not that I really will need to…HaHa).
    You certainly put a brand new spin on a subject that has been written about for many
    years. Excellent stuff, just excellent!

  12. josie says:

    I ask information about how to register a pattern.

  13. I have enjoyed your series on copyright issues within the quilt world, and wanted to suggest another related topic — what about Pinterest? I got to thinking about it when I was reading what you wrote about Fair Use, that it’s okay to use images or quotes for purposes of critical or scholarly review. So suppose I take photos at a quilt show and post them on my blog, in a post in which I credit the quiltmaker and the show that the quilt appeared in. I write about how I admire the quilter’s use of color or the way her quilting designs accentuate the applique, and I link back to the show and/or the quiltmaker’s web site if she has one. Isn’t that fair use for critical review? Then Pinterest is a little more of a gray area, but if I am posting a comment along with each photo such as “love this Baptist fan quilting design resembling waves in the background,” does that constitute fair use as well?

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