The Copyright Chronicles Continue

A few posts ago, I alluded to the "not to be knitted for resale" language that appears at the bottom of many knitting patterns. I have to say that this language perplexes me, from a legal standpoint.

Wait: here's your disclaimer. I'm not giving you legal advice. I'm not your lawyer. I'm just shooting my mouth off on a blog, and if you need advice about your own situation, you must find your own lawyer with whom to discuss the specifics of your situation. Read no further unless you agree.

Okay, back to the Copyright Chronicles (thanks for the name, Liza).

Loyal reader The AmpuT (who likes to torture unwitting Home Depot clerks -- she's my kind of gal) asks how copyright law impacts "people selling knitted items derived from patterns they've purchased (or downloaded for "free" on the internet)? . . . When is that okay (if ever)?"

I knew someone was going to ask me this, and the reason I didn't bring it up myself was because I really don't know the answer to this one.

Let me start with the easy part. From a copyright perspective, there's no difference between a pattern that is printed on cardstock and covered with a plastic sleeve and sold in a yarn shop, and one that you can print out for free on the internet. A pattern is subject to the same protection under copyright law regardless of which form it's in. The fact that you don't pay for the pattern on the internet doesn't matter. Hear me? DOESN'T MATTER. You can give away a pattern and that doesn't mean your work isn't copyrighted. That is, as we nerdy lawyers say, "a distinction without a difference." So whatever the rule is about knitting for resale, it applies exactly the same no matter what the source of the pattern -- internet, yarn shop, book -- or whether you got it for free or paid for it.

So what is the rule about knitting for resale?

I just don't know.

Let's backtrack a little. Copyright protection applies to the written expression of the design, first and foremost. It's the written-out language of the pattern that is most clearly subject to legal protection. (This is why photocopying questions are a little bit easier to address, because you're talking about a verbatim copy of the copyrighted pattern, and the exact expression of the pattern is the part that has the highest and most clearly defined protection.)

But in the knitting-for-resale scenario, you aren't talking about copies of the pattern directions being made and sold (which is clearly illegal) but rather copies of the finished garment being made and sold. To win on this kind of claim, you may well have to show that your garment itself, not just the written directions for it, is protected by copyright. And it gets much murkier when you are claiming copyright protection extends to the whole sweater design, as opposed to just the written directions.

Here's a quote from the U.S. copyright office (emphasis added):

"Designs for useful articles, such as vehicular bodies, wearing apparel, household appliances and the like are not protected by copyright. However the design of the useful article is subject to copyright protection to the degree that its pictorial, graphic or sculptural features can be identified as existing independently of the utilitarian object in which they are embodied."

Clothing is utilitarian -- it's meant to cover the body, to provide warmth and protection. Think of a simple crewneck sweater with ribbing at cuffs and sleeves. If you write up a pattern for such a basic sweater, you can't claim that your sweater design itself is copyrightable. [Of course, you'd claim the written directions, i.e. the exact way you describe how to make the sweater, is copyrightable, but I'm not talking about the verbal instructions, I'm talking about the garment design itself.] Og the Caveman came up with the notion of a garment that covers your chest and has sleeves eons ago; people have been making and remaking that garment over the centuries, and they've been making and remaking crew-neck sweaters -- one incarnation of Og's chestcoverer -- for many, many years. There has to be something more, something distinctive enough that it can be separated from the generic idea of the sweater itself. Now think of Kaffe Fassett's Foolish Virgins jacket. There you have something copyrightable: pictorial patterns, colorwork, unusual and distinctive graphic design that make this more than just a piece of knitted cloth to cover your body.

What this means is that certain knitted garments -- probably most knitted garments -- aren't distinctive enough, don't have some "pictorial or graphic" feature that can be separated from the garment itself and therefore protected by copyright.

You, clever ones, can see how quickly this gets murky. No one can copyright the general idea of a crewneck sweater with ribbed neckband and cuffs. But how much more does it take to make your sweater distinctive enough to be copyright-able? Stripes? Probably not distinctive enough. Fair isle pattern by the Scottish designer who Shall Not Be Named? Kid's sweater with an intarsia kitty cat on it? Norwegian snowflake pattern? What if the snowflake pattern has been used by folk knitters for ten generations? Who knows? (And when you're talking about objects other than garments, it gets even more unclear. Is a stuffed toy bear a "sculpture," a piece of plush art?)

This is more than an esoteric exercise, though. If your sweater design isn't copyrightable, then you don't have a claim for copyright infringement. So if you're making a crewneck sweater with no unusual pictorial features, there's some reason to suggest that, heck, nothing about that is distinctive enough to merit protection under US copyright law, so make as many as you want and sell them to whoever'll buy them at the local flea market.

But wait. You know it's not quite that simple. Designers have a back-up argument, an argument that's based on contract law, instead of copyright law. Whenever you buy or sell something, it's technically a contract. I agree to give you $5 and you agree to give me a knitting pattern in return for the money. Contract. The parties are free to impose conditions on their contract. You can say "I will only sell to people who pay me in cash." If I don't have cash, you can say, "No sale." Payment in cash is a term of the contract.

Designers will argue that a term of their agreement to sell the pattern is your agreement that you will only use the pattern to make things for personal use, and that they won't sell it to you if you don't agree that you will refrain from making items for resale. They will say that the language at the bottom of the pattern sets out this condition and that you agree to it when you hand over your $5. If you then go and make 1,000 cucumber-shaped baby hats to sell at your church bizarre bazaar, you've violated that condition of the sale. This argument isn't without its own problems: you might say "Well, I never agreed to that" or "contract of adhesion!"* But who knows what the answer will be if you ever took it to court?

I have a lot of sympathy for the notion that a designer should have the legal right to control mass production of a garment she's created. But the law isn't based on sympathy, and I have a hard time finding a solid basis in copyright law for a claim that the "not to be knitted for resale" language bars you from doing so. It seems to me that the question has more to do with the licensing issue than copyright, and quite frankly, I just don't know what the answer is. Other people who've addressed this problem have come to different conclusions; for example, Jen Tocker's copyright discussion, linked somewhere in my comments, states that you can't sell items made from copyrighted patterns but her footnotes only attribute that to a person's name, not any legal case or statute. The Girl From Auntie is more convinced by the implied license argument than I am. My husband, on the other hand, notes that courts have expressed hostility to the "bootstrapping" of a licensing argument onto what is primarily a copyright dispute, reasoning that contract law shouldn't be used to create some kind of intellectual property protection that copyright law refuses to make, that it's kind of a cheat. (He started talking about belt buckle cases, in which belt buckle designs that looked like snakes were protected by copyright, being artistic or distinctive enough, but amorphous blobby ones were not. Love him as I do, I nevertheless chose not to go to Decorative Belt Buckle Land.)

Now, don't any of you go and say "I can make this and sell it because the Go-Knit-In-Your-Hat-Lady says it's okay." I'm not saying that. I'm saying that this is a murky area of the law and I don't know what the answer is. Pretty much every knitting designer would take the position that their designs are NOT to be knitted for resale, absent specific permission from them or the copyright holder (if it isn't them). Given the law's uncertainty, and given what seems to be the right thing to do, the safest way to deal with the situation is to ask the person or company who owns the copyright for permission. Govern yourselves accordingly.

Finally, Karlie asks whether patterns are, to borrow a contact lens phrase, "single use": in other words, can she keep making a garment over and over once she's purchased the pattern (for her own personal use)? I think that's a resounding yes. I can think of no legal basis for restricting the owner of a pattern from making as many versions of the garment as she wants, so long as the pattern was legally obtained in the first place.

*A contract that is so one-sided, it isn't enforceable.

Fiber Stuff

I did finish the Jamaica sweater. Here's a photo as I was sewing in the last few ends. I've been having trouble getting Blogger to load photos in last day or so; sometimes I can and sometimes I can't. I had to try about ten times over two days to get this to load:



And here's some new selections being listed on Etsy today: both are about 875 yds of laceweight merino, enough for, say, the Fiber Trends River Scarf, or Estonian Garden Wrap [you'll have to buy your own copies of them; they are not included as I am not an authorized Fiber Trends retailer, unlike, say, Rosie's Yarn Cellar, who will charge you only actual postage if you order patterns from them).



I'm going to be dyeing some more larger batches of laceweight yarn (like the blue one, which sold so fast!). I'll also do some heavier weights, like DK, but I'm still working out issues like finding good suppliers, so keep checking back. I'll put updates at the end of my blog posts, and that way, if you are sick of hearing about my dyeing escapades, you can just stop reading.

Finally

I want to say thank you to all of you (especially Mindy) who're being so supportive of my Black Bunny Fibers endeavor. I really value all the kind words you've sent my way about dyeing and the blog. I take a great deal of satisfaction in the blog, and it really touches me to know that there are other fanatical knitters out there who like to read it. I'm going to go dab my moist eyes with a tissue now and get back to the dyepot.