Copyright ownership can be a complicated issue. There are many things that might effect ownership of a copyright, including when, why and by whom the work was created. Below I have discussed some important copyright ownership issues, including the public domain, copyright duration and copyleft licenses.
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.
Public domain and copyright duration
First I want to discuss an important concept in copyright law, the public domain. Original works of authorship exist in the public domain once the intellectual property rights have expired, been forfeited or are inapplicable. Once a work enters the public domain, the copyright owner no longer has the exclusive rights discussed under Copyright 101. The copyright in these works is no longer available for private ownership and are now available for public use. Public domain works can be copied without permission and can also be freely used for derivative works without permission.
Determining whether a work is in the public domain can be tricky. If you created a copyrighted work today (excluding sound recordings and architectural works), the current rule states that your copyright would be valid for your lifetime plus 70 years. For older published works, anything published before 1923 is in the public domain and anything published between 1923 and 1977 without a copyright notice (such as the little © symbol) is in the public domain because a copyright notice was required for protection. Since 1978, copyright notice is no longer required for protection. Unpublished anonymous, pseudonymous and corporate authorship works or works where the date of the author’s death is unknown are protected for 120 years from the year of creation. Therefore, works created before 1893 are now in the public domain.
For a more detailed review, including some exceptions to the rule, see Cornell University’s Copyright Term and the Public Domain in the United States page.
So why is this important for quilting? Well, a huge number of quilt patterns and designs were created before 1923. And many quilt patterns and designs may have been created between 1923 and 1977 without a copyright notice. This means that these designs are now in the public domain and no one can own a copyright in these designs. Anyone can create a copy or derivative work from these designs without fear of violating copyright law. But this also means that the resulting copy or derivative work cannot have copyright protection either (unless the derivative work is so different so as to constitute an original work of authorship, as discussed under Copyright 101).
You can use the Creative Commons Public Domain Mark Tool to designate works as public domain. This allows others to know that something is free of copyright protections.
As a side note to our public domain discussion, I wanted to mention the concept of Copyleft. Copyleft is a form of licensing and can be used to maintain copyright conditions for original works of authorship. These licenses have been most popularly used for software, but can be applied to others areas such as art, books or quilt designs and patterns. In contrast to copyright law, under copyleft, an author may give every person who receives a copy of a work permission to reproduce, adapt or distribute it and require that any resulting copies or adaptations are also bound by the same licensing agreement.
There are several copyleft licenses in existence, but in general, I prefer licenses under Creative Commons (CC), a non-profit organization founded by Lawrence Lessig (side note: Lessig, a law professor at Harvard, is a truly interesting and brilliant legal mind. He has published several books discussing law and free culture, some of which are available for free download under CC licenses. You can read more about him at his blog here). The CC licenses are available free and provide a simple, standardized way to give the public permission to share and use your creative works using conditions of your choice. There are six licenses covering a range of situations. Under a CC license, for example, you can let your blog readers use your photographs on their own site as long as they give you credit, but still prevent them from being used for commercial purposes. You still retain the copyright in your work and the legal right to enforce your copyright under the terms of your licensing agreement.
There are a number of situations in which the question of copyright ownership may arise. In law school, legal principles were often taught and tested through hypothetical situations. These hypotheticals allow students to explore how the law should be applied in relation to the facts of a case. As an ode to law school, I have created a number of hypothetical situations below followed by an application of the law to answer the question, “Who owns the copyright in the design of this quilt?”
Hypothecial #1: You have a friend who commissions you to make them a baby quilt for her daughter. She pays you a fair market price for materials and labor. You give the quilt to her upon completion.
Answer #1: Even though this is a commissioned work, you will retain the copyright in the design because it does not fall within the definition of a “work made for hire.” Works made for hire are either made as part of a person’s employment, or commissioned under 9 specific categories and the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For more information see Works Made for Hire.
Hypothetical #2: You work as an employee making sample quilts for a quilt shop. You are provided with all materials for producing the quilt and are paid by the hour for your work.
Answer #2: In this case, you are an employee of the quilt shop. A “work made for hire” includes a work prepared by an employee within the scope of his or her employment. Therefore, your employer and not you are considered to be copyright holder.
Hypothetical #3: You create several quilts that are later submitted and accepted for publication in a magazine.
Hypothetical #4: You are contracted by a book publisher to create all new quilt designs for a book on modern quilting. The publisher provides you with a monetary advance and sets a deadline for the completion of your work.
Answer #4: You would maintain the copyright in both your quilt designs and the book generally, but many publishers require assignment of copyright as a condition of publication. Just like the magazine, your contract could transfer the copyright to the publisher, so be careful to read the contract carefully and consult with an attorney if you have questions.
Hypothetical #5: You and your guild are provided with free materials from a fabric manufacturing company. You produce a charity quilt in which each guild member contributes a 60″ row to the quilt. One member takes all of the completed quilt rows home, lays out the quilt design using her artistic talents and sews them together. The finished quilt is featured on a national quilt blog.
Answer #5: No matter how many collaborators, the work will only be a jointly owned work if the collaborators intended, at the time of creation, that their contributions would be joined into a unified whole and that they would be joint authors. In this hypothetical, the guild members intended their individual contributions to be unified into a single quilt and therefore, all of the contributing guild members maintain an equal copyright interest in the completed work.
In my next installment, I will discuss Creative Commons licenses in greater detail and talk about the possible benefits of using such a licensing scheme for your works.