Sunday, April 01, 2012

Cats and copyright, where did the fun go?

For me this has been a very very long week. It started badly with one of my cat needing (and wanting) to be put to sleep. I'm glad he agreed, and I am glad he isn't suffering, but he is missed and it wasn't a good start to a week.

Now before you read on, I know this will read like and April fool, but sadly it isn't. I can't believe that I am having to put this on, but this whole situation does read like a very bad joke.

Rather than then immersing my self in quilting I've mostly been studying law. I'm not a lawyer and I really have no desire to be one but I needed to find out how copyright laws effect quilting. So far the answer is, we don't know and this is a really grey area. Those of you who buy a pattern and some fabric, make a quilt and sling it on the bed, sofa or friends bed are fine. Carry on the industry loves you and all is well in the world. Once you break out of this into publishing things do seem to get a bit more confused/muddy, and by publishing I do include publishing on the internet.

Now a quick side line before I go any further. Things on the internet are not copyright free. I can't tell you how many times in the last week I have seen people saying that anything on the web is in the public domain and free for anyone to use. It isn't. Content on the internet belongs to whoever wrote/drew/created it, and unless they specifically say this item is free for you to use, it isn't. This means I still own the text and images on this blog, (except your comments which are published with your permission) if you wanted to use them for something you need to ask, and for what it's worth you will usually get permission. I've asked many people if I can use their images, mostly for quilts and I've been thrilled by how lovely they have been about it. Usually offering far more than I asked for. Try it you may find yourself a new friend. The flip side of this is that when you post anything on the internet you are claiming you own the copyright and if you don't you are opening yourself up to legal action.

This is where we get to what is giving me the headache, who owns the copyright to the image of my quilts. For a few I can answer that question, I do. Prometheus, Dragon 1 and Greek Fossils are mine. The fabric was produced by Heide Stoll-Weber and she is happy that I own the finished quilts. For the rest of my quilts, who knows. There has been a case where a fabric designer has claimed that she retains rights to the images of a quilt if it contains her fabrics, and she was prepared to take legal action to defend this right. The people she felt were violating her right did cease what they were doing which prevented the case going to court. For me, that's a shame, I need a judge to rule on this to make it clear what everyone's rights are. Unfortunately as it stands this leaves the area grey and people like me making show quilts, writing books and designing patterns in a very difficult position. If I don't own the copyright to my quilts I can't use them in books, patterns, web sites. I can't reproduce them on anything, no even my business cards. As a longarm quilter I can't photograph customer quilts and show them on my website to illustrate the work I do. I can't show pictures of my talks or my classes.  If I don't own the rights to the quilts image I also can't pass those rights on to others, like quilt shows. Crazy, yes. Worrying, very.

As I said, for most hobby quilters nothing has changed. You can buy you fabric, make a quilt and use it. If you are branching outside of that you might want to take a look at the legal situation. I am still waiting on  a few more people getting back to me, but I have a nasty feeling the answer will be we don't know. Although even if they come back and say I own the copyrights to my quilts am I  in the clear? The problem with the law is it takes money to defend yourself, even if you are completely in the right. If I want to keep using commercial fabrics in my quilts I need to start saving a lot of money to defend any potential law suit, and unfortunately I don't earn that sort of money. For me just knowing there are fabric designers out there who believe they own the rights to my finished quilt may mean I have to change how I work. No more student quilts in my books (even if the designers would settle for being credited what are the chances of knowing full details on every fabric). Less real fabric images in my patterns and books. More samples made with hand dyed and solid print fabrics. I would love to hear from any lawyer who could offer a solid solution to this problem, but I won't be holding my breath. For now my pattern samples are being made with safe fabrics, hand dyed by me and others I know. It lets me sleep at night.

 I have designs waiting to be made up that use Moda pre-cuts. It's something that had been requested but students but now I have the fabric and I can't use it. I'm not going to buy more non commercial fabric to make a pattern that will sell the same commercial fabric I now can't use, that would be insane. I have patterns that use large and novelty prints, I am not going to print my own versions of those either, just to sell fabric I still can't use.


I really would like to see a solid resolution to this situation. I have a lot of fabric here which seems to now be so much junk. I think the simplest and safest solution would be for fabric manufacturers to publish a statement as to what we can do with their fabrics. With the answer coming back that this is a grey area of law we need someone to make it clear, and I don't think any pattern designer, writer or show organizer has the spare money to take it to court for them, and yes at the end of the day it is at least as much for the fabric manufacturers as anyone else. If the designers and artists can't / won't use the fabric the fabric companies lose the advertising and promotion that brings with it. If quilt shows are forced to ban commercial fabrics to protect themselves the fabric companies lose out more than anyone else.  So what we need is for the companies to give us the rights to our finished quilts. The same rights any other artist has to use the image of their completed art work. I think any company who will do this will gain a lot by it as their fabrics will also then be safe to use and right now I am happy to work with fabrics from any company who will do this, I suspect I am not the only one. Anyone want to step up and lead the way?

19 comments:

Pete Darby said...

I AM NOT A LAWYER, but...

Surely the solution to this lies in the distinction between derivative and transformative works?

I've got a fair idea of how this works with the written word (a recording of someone reading aloud from a book is clearly derivative: a recasting of a victorian period novel as a CGI SF musical is clearly transformative), but the rules of thumb for determining anything between are vague at best.

To my mind, quilting is clearly transformative for the materials, derivative for the patterns. But I AM NOT A LAWYER.

The Pied Pedlar said...

O boy,I take it this is no April fool joke.Where do we all go now???

Anonymous said...

I agree with what you say, I don't know where my quilting is going, but I do love the hand dye fabric, so may be I am lucky.
Some time ago, I worked for a greeting card manufacture as an accountant, and in my contract of employment, my employer had right over all my creations, even though I was not in the design department. However we did by in designs from outside designers, and we bought "all rights". May be the material manufactures need to check there contracts with there designers before WE can get an answer.

Sara said...

I'm not a lawyer (and don't want to be). Logically, the fabric designers do NOT own the rights to anything I create with their product. Their product does not define the work - the quilt could easily be made with a different fabric and still be quite similar - and is simply a tool used in the creation of a work of art. Other tools used in the process of creating the piece include thread, batting, scissors, needles, etc...and, obviously, these tools do not have the rights to the project/product.

The company that produces the paper, ink, or laptop that I use to compose my bestselling novel or screenplay never claim to own the rights to my project. Nor does the company that produces the pens, inks, papers, paints, beads, findings, yarns, etc. that I use to create other works of art.

For fabric designers to claim that they own the rights to anything made from their TOOL is, again, illogical and is also greedy. They've been paid for their product by the manufacturers. Once I purchase the fabric, it is mine to do with as I choose as long as I do not attempt to make money off the actual tool (meaning that I couldn't resell/republish the tool under my own brand/name but that I can sell/publish the finished product).

Anonymous said...

I AM a lawyer and I am unclear on this issue although it seems beyond logical that the fabric designers own rights to a 'transformative' item - different if using both their fabric and design - this would count as 'derivitave' and therefore be subject to copyright. I will ask my niece (a renowned IPR lawyer) and her father (a judge) their thoughts on the matter and get back to you. I too have 99% found that if you ask to use a picture/source that the originator says "yes" purely because one has actually bothered to ask.

thargol said...

If I don't own the copyright to my quilts I can't use them in books, patterns, web sites

You do own the copyright to your quilts, and the fabric designers aren't claiming any rights on the actual quilts themselves, which have been made by you, using your design[1]. So you can display them in public at an exhibition or at a quilt show without problems[2], for example. What they are claiming is that images of your quilts also contain their copyrighted designs (as well as yours), and thus those images can't be reproduced without the permission of all the copyright holders involved (which incidentally will also include the photographer). I believe them to be wrong, because the majority of your quilts don't use large enough pieces of their fabric for the design to be visible (and thus their copyright on that design is irrelevant). Indeed, for most of your quilts, a fabric designer would be hard pushed to tell that you'd used their fabrics at all without a close up inspection of the quilts, and they'd have to be superhuman to identify their fabrics from images printed on a postcard or in patterns and the like.

The quilt that's prompted all of this is more complicated, in that the designs on the fabric are clearly visible. I still think the designer is in the wrong because the quilt uses several fabrics in her own design, but it's less clear cut because of the amount of the design that's visible on the pieces of fabric used.

However, no one will know for sure whether you've used enough of a design to be an infringement of copyright until it goes to court and a judge rules on it. And you're right in that whether you're legally in the clear or not, defending it in court is probably going to be prohibitively expensive :-(

[1] This is quite easy to prove, because copyright only allows them to restrict copies that people make of their designs, which you haven't done in making the quilt. You've used copies that someone else made (in this case, the fabric companies, under license from the designer).

[2] Although the show organisers may potentially have problems if they want to put pictures of the quilts into a show guide, for example. However that's a side issue.

Liz said...

I am so sorry about your cat and sorry too that of all your posts and fantastic work that you have shared so freely, this post has generated most feedback.I read around this issue yesterday. There were some negative comments (on a blog I used to read) about the fabric designer but reading her version of events was quite interesting and her serching for clarification was only possible through the courts. I hope you are able to find satisfactory answers to your questions and that you can get back to work creatively without restrictions very soon.

Ardelle said...

I am not a lawyer either, just a quilter and quilt shop owner. I have been struggling to understand copyright for many years. To me fabric was created for us to create with! How can a fabric designer claim to own something I make with her/his fabric? If we do not create with fabric, we will not buy fabric....

Beaverton Vet Hospital said...

Great blog, informative and up to date. Bookmarking your page. Thanks and more power!

Janette said...

This has been an interesting case which I have been reading about this week, and like you say particularly worrying if you designing quilt patterns and posting photographs on a website as longarm quilters do to showcase our quilting services. Like you say it will probably continue to be a grey area, and I think that these fabric designers are going to drastically reduce their fabric sales. Well at least one fabric designer .....

Will be interested to see what you get back from your sources.

Janette

jan said...

Hmm, I am NOT a Lawyer, all I know is pure common sense. If manufacturers or anyone else is choosing to be nitpicky over this, I would suggest we all, to a man/woman, just don't buy any more fabrics and see what they think of that!!
Do you think the thread manufacturers will decide to join in. Oh and the Pins and needles folk, the scissors, the rotary cutters, the rulers that helped you straighten that line, the list is endless and needless.
The world has or is going mad.

jan said...

Oops, sorry Ferret, I didn't forget, I just got side tracked by some rubbish......
I was sorry to hear of one of your cats 'going to sleep'. Always sad.

A further comment on the copyright lark, if this means we are no longer to see any of your quilts...what is the point of going on I ask myself??? All the Quilt shows will have to be cancelled too I guess. Ho hum, what fun...NOT.

jan said...
This comment has been removed by the author.
Sandy said...

Hi Ferret,
Have you seen the post on Leah Day's site. As well as a long breakdown of the concepts - which includes the idea of the quilting stitch patterns she offers for free - there is an embedded TED talk about copyright in the fashion world. But more importantly a discussion with the original fabric designer who seems to have started this...it does clear things up a bit, because it seems the publisher was taking a quilt image and making totes from it 1 - without noting the designer of the fabric line from which the designs were obvious and 2 - and also without noting the one who had made the quilt (the one who wrote the book).

whatever you think after reading it, it is actually a bit clearer than most of the stuff I have read in response to this incident.
Sandy in Bracknell

Sandy said...

me again, by the way, sorry to hear about your cat. I have just been through that this week with our dog. She was so active til 3 weeks ago and suddenly went right down hill. I sure miss her around here. Sam got to come home from uni and we all said goodbye together Monday morning.
big hug to you.
Sandy in Bracknell

Anonymous said...

I am so sorry about your cat. We lost one of ours a few months ago, and it is so very hard to deal with.

Please check Leah Day's blog - it's interesting reading. There's also a website, Tabberone.com, with a lot of information, assuming that US and British copyright laws are similar. The Tabberone site is run by a woman who took on Disney over the use of licensed fabric in items for sale on eBay, and she won.

Janet

Margaret Cooter said...

In the UK, the Intellectual Property Office is the resource of recourse: www.ipo.gov.uk. Also, the British Library has a Business & Intellectual Property Centre that can give guidance on questions like this: http://www.bl.uk/bipc/

Ferret said...

I've spoken to the IPO and they say you can't photograph copyrighted designs and as far as they are concerned (based on use of wall paper in collage) no quilts can be shown or photographed if they contain commercial fabrics. Not for books, quilt shows, patterns or anything else. Of course the law may not follow on from the wallpaper example but that is what they base their advice on.

Cat said...

When we did theoretical property law (John Locke) his theory was that if you take something that already exists and you use labour to change it, the final creation is your own because you own your own labour. E.g taking drift wood and painting it pink.
I hope that this is the approach that is embraced Ferret.
Sorry about your cat, that's not what you'd wish on anyone.