Sewing Business/copyright infringement

[PrairieSong]

I did a search but couldn't find a thread on this. I am thinking of starting a small scale business sewing some children's clothes, maybe some fabric headbands and tote bags. I am pretty sure I wouldn't legally be able to use others' patterns without violating copyright laws, unless it is explicity stated in the pattern/book that this is permissible.

 

However, there are so MANY patterns/tutorials that look so similar, for example: a little girl's sundress with a shirred bodice and shoulder straps. I could easily draft my own pattern after doing some math. It's basically two rectangles, shirred at the top, with straps. There are MANY patterns like that...how would I prove I didn't use any of them? Or a tote bag. I could easily make a rectangular tote bag from fabric without using any pattern, but it will look like other tote bags.

 

Right now I'm not planning to sell online, though that could change. I would be selling at craft fairs, church bazaars, etc.

 

Should I worry about copyright infringement? How should I protect myself?

[HayesW]

You may make and sell any garment from any pattern. You may NOT market an item as being made from another's pattern unless you have permission. For example, you can make a sundress using a pattern from Cutest Clothes EVER! pattern company. You may sell as many as you desire! You may NOT sell the dresses as "Cutest Clothes EVER! sundress."

 

Does that make sense?

[Mrs Mungo]

These are posts that I made in a thread about this issue:

 

This gets bandied about a lot, but I think it's wrong information, legally. According to the "first sale doctrine," once you buy something you can do what you want with it. Copyright isn't there to restrict you from selling a quilt made with Disney fabric, it's there to prevent you from making your own Disney fabric. Some designers might like people to think the law forbids this, but it doesn't. (eta: Copyright law prevents you from making copies of a paper pattern, but it does NOT stop you from selling an item you produced using a pattern.)

 

Amy Butler's FAQ:

http://www.amybutlerdesign.com/faqs/

Can I use Amy's fabrics to make projects to sell or use in manufacturing finished goods?

YES.

 

This is because fabric is a "for use" product. The design on the fabric is copyrighted, the fabric cannot be copyrighted from a legal standpoint.

 

Now, it also says:

Can I buy the patterns and make the projects to sell?

No. Here's how our new copyright reads on our patterns. . .

 

But, the truth is, there is no legal standing for this. In fact, the opposite is true. Patterns are *also* a "for use" item.

 

http://scholar.google.com/scholar_case?case=4214534134982518981&hl=en&as_sdt =2&as_vis=1&oi=scholarr

 

http://www.tabberone.com/Trademarks/...tsLetter.shtml

" In your second appeal you note that dress patterns are copyrightable. For your information, the board notes that the aspects of dress patterns that are copyrightable are the textual directions included with the paper patterns as well as the illustration showing the finished product generally shown on the pattern's outer package. The pattern pieces themselves are not protected by copyright."

 

More court back-up:

http://www.law.cornell.edu/copyright...25_F3d_580.htm

In this case someone was buying prints, mounting them on tiles and reselling them. Court decided: no infringement.

 

http://www.leagle.com/xmlResult.aspx...985&SizeDisp=7

In this case someone was buying fancy embroidered towels and making them into handbags. Court decided: no infringement, but the maker did have to start adding a tag that there was no connection between the original manufacturer and the handbag maker.

 

eta:

http://www.copyright.gov/circs/circ40.pdf

 

edited again to add:

http://www.copyright.gov/fls/fl103.html

 

A “useful article†is an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing; automobile bodies; furniture; machinery, including household appliances; dinnerware; and lighting fixtures. An article that is part of a useful article, such as an ornamental wheel cover on a vehicle, can itself be a useful article.

Copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship. Copyright may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus a useful article can have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware can be protected by copyright, but the design of the chair or the flatware itself cannot, even though it may be aesthetically pleasing.

Some designs of useful articles may qualify for protection under federal patent law. For details, contact the U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450. tel: (800) 786-9199 or (571) 272-1000. web: www.uspto.gov.

Copyright in a work that portrays a useful article extends only to the artistic expression of the author of the pictorial, graphic, or sculptural work. It does not extend to the design of the article that is portrayed. For example, a drawing or photograph of an automobile or a dress design can be copyrighted, but that does not give the artist or photographer the exclusive right to make automobiles or dresses of the same design.

 

This is irrelevant and misleading information that people/companies put on patterns. You DO *legally* have the right to sell whatever you make from a pattern.

 

Pasting from my earlier post:

http://www.tabberone.com/Trademarks/...tsLetter.shtml

" In your second appeal you note that dress patterns are copyrightable. For your information, the board notes that the aspects of dress patterns that are copyrightable are the textual directions included with the paper patterns as well as the illustration showing the finished product generally shown on the pattern's outer package. The pattern pieces themselves are not protected by copyright."

 

eta more info:

http://supreme.justia.com/cases/fede...1/99/case.html

A treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs, or watches, or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective, would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein.

<snip>

it is similar ruled lines and headings of accounts which, in the application of the art, the bookkeeper makes with his pen, or the stationer with his press, whilst in most other cases the diagrams and illustrations can only be represented in concrete forms of wood, metal, stone, or some other physical embodiment. But the principle is the same in all. The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters patent.

<snip>

In Drury v. Ewing, 1 Bond, 540, which is much relied on by the complainant, a copyright was claimed in a chart of patterns for cutting dresses and basques for ladies, and coats, jackets, &c., for boys. It is obvious that such designs could only be printed and published for information, and not for use in themselves. Their practical use could only be exemplified in cloth on the tailor's board and under his shears -- in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms. Surely the exclusive right to this practical use was not reserved to the publisher by his copyright of the chart. Without undertaking to say whether we should or should not concur in the decision in that case, we think it cannot control the present.

[HayesW]

Mrs. Mungo is exactly correct.

 

I'd also like to recommend the forum sewingmamas.com

lots of nice ladies there, and a business forum as well.

[PrairieSong]

Wow, thanks for posting that. I had read otherwise, that it is illegal to use someone else's pattern to make a garment for sale.

 

However, some patterns DO say you can't use them to make items for profit. I've also seen some (indie-type pattern makers, not big companies like McCall's) web sites where you can buy the pattern AND pay extra to use it for your for-profit sewing business.

 

Hmmm...lots of food for thought here.

[PrairieSong]

HayesW, thank you for the forum suggestion. I'll check it out.

[Jane in NC]

You may also want to look at Sew Liberated's website. The owner grants a license for a minimal charge and then lists the producers who make her goods on her website. This seems like a nice arrangement for all in my opinion.

[Mrs Mungo]

Wow, thanks for posting that. I had read otherwise, that it is illegal to use someone else's pattern to make a garment for sale.

 

However, some patterns DO say you can't use them to make items for profit. I've also seen some (indie-type pattern makers, not big companies like McCall's) web sites where you can buy the pattern AND pay extra to use it for your for-profit sewing business.

 

Companies can *say* that all day long. But, you are not legally (or ethically, imo) required to honor their wishes.

[PrairieSong]

OK, here's an example from Heather Bailey's web site. You can download free patterns, but on the download page it says that by downloading the pattern you are agreeing to use it only for your own personal use, and that you will not reproduce the pattern OR make items for sale from the pattern.

 

So are you saying she doesn't have a legal leg to stand on?

 

http://www.heatherbaileydesign.com/Headband.html

 

Edited to add: Mrs. Mungo, you already answered me. Guess we cross posted.

Edited March 14, 2012 by PrairieMom
cross posting

[PrairieSong]

Thanks, Jane in NC. I will check out Sew Liberated.

[Mrs Mungo]

OK, here's an example from Heather Bailey's web site. You can download free patterns, but on the download page it says that by downloading the pattern you are agreeing to use it only for your own personal use, and that you will not reproduce the pattern OR make items for sale from the pattern.

 

So are you saying she doesn't have a legal leg to stand on?

 

http://www.heatherbaileydesign.com/Headband.html

 

Edited to add: Mrs. Mungo, you already answered me. Guess we cross posted.

 

 

Not to belabor the point, but, yes. This has already been through the courts. Even big guys like Disney have lost cases like this.

 

Edited to clarify: you cannot copy the pattern, but you can produce items with it. It is an item for use.

Edited March 15, 2012 by Mrs Mungo

[HayesW]

I am saying she does NOT have a legal leg to stand on. You cannot copy the paper information and sell that. It is her intellectual property. You may not sell an apron and list it as being a "Heather Bailey" apron as that is a proprietary name.

 

However, you may make as many aprons as you wish and sell them all.

 

Married to an IP attorney and have studied this issue thoroughly.

[PrairieSong]

I am saying she does NOT have a legal leg to stand on. You cannot copy the paper information and sell that. It is her intellectual property. You may not sell an apron and list it as being a "Heather Bailey" apron as that is a proprietary name.

 

However, you may make as many aprons as you wish and sell them all.

 

Married to an IP attorney and have studied this issue thoroughly.

 

A new questions occurred to me.

 

OK, so I can't make aprons from an Adorable Aprons pattern and sell them as "Adorable Aprons". I got that part. What if I sell online and also have a sewing blog where I state that I used an Adorable Apron pattern? Could I get it trouble? Do I have to keep it completely hush hush about what pattern I used, if it is someone else's?

[HayesW]

As long as the blog and store aren't linked, you may be ok. Seriously, go check the SewingMamas forum. I am pretty sure someone there had answers to these sorts of specific questions.

[stripe]

That's really interesting, Mrs Mungo.

 

But I have a question: If someone has a website and puts up a pattern, and says nothing, isn't that different from AGREEING (by downloading, or pressing a button or whatever) that you won't use her pattern for profit and then going ahead and doing it? It seems to me that it is a bit dishonest to "agree" not to sell them and then sell them anyway.

 

A tangent - There are an awful lot of knock off patterns. I've seen a disturbing number of craft books with stuff in them that is strangely identical to Japanese craft books -- they're counting on Japanese authors never seeing the books. (Not to mention people who sell PDF files of scanned books but we won't even go there.)

 

I don't think I would be comfortable agreeing not to sell and then using it to make money.

 

The OP's question (as I read it) was about more generic things like a rectangular tote bag or a basic shaped dress and defending yourself against someone's claim that you made it from their pattern when in fact you made it from your own.

 

BTW the book Sew What! Bags has a lot of good stuff about making your own patterns for all sorts of nice bags.

[Mrs Mungo]

That's really interesting, Mrs Mungo.

 

But I have a question: If someone has a website and puts up a pattern, and says nothing, isn't that different from AGREEING (by downloading, or pressing a button or whatever) that you won't use her pattern for profit and then going ahead and doing it? It seems to me that it is a bit dishonest to "agree" not to sell them and then sell them anyway.

 

In my *opinion*? Most of these people *know* that they cannot legally forbid it. So, I don't feel like there is an obligation there. I can understand why some people would feel an obligation.

 

A tangent - There are an awful lot of knock off patterns. I've seen a disturbing number of craft books with stuff in them that is strangely identical to Japanese craft books -- they're counting on Japanese authors never seeing the books. (Not to mention people who sell PDF files of scanned books but we won't even go there.)

 

Now, that is obviously not legal.

 

The OP's question (as I read it) was about more generic things like a rectangular tote bag or a basic shaped dress and defending yourself against someone's claim that you made it from their pattern when in fact you made it from your own.

 

BTW the book Sew What! Bags has a lot of good stuff about making your own patterns for all sorts of nice bags.

 

And I don't think anyone has anything to worry about for the reason that you are legally allowed to do that, anyway.

[stripe]

In my *opinion*? Most of these people *know* that they cannot legally forbid it. So, I don't feel like there is an obligation there. I can understand why some people would feel an obligation.

I guess I saw it as agreeing to have your rights curtailed for the thrill of using their pattern. Aren't there other contracts where you in essence "sign away" your rights (a prenup comes to mind)?

 

And I don't think anyone has anything to worry about for the reason that you are legally allowed to do that, anyway.

I was mentioning it because it could give a person pointers to design more complex things on her own, not because using a pillowcase to make a dress or cutting out a rectangle and adding straps is somehow some top secret procedure. It was more of an aside as it's a nice book for techniques.

[Mrs Mungo]

I guess I saw it as agreeing to have your rights curtailed for the thrill of using their pattern. Aren't there other contracts where you in essence "sign away" your rights (a prenup comes to mind)?

 

Sure, but that is an actual contractual agreement, not the fine print on a purchase.

 

I was mentioning it because it could give a person pointers to design more complex things on her own, not because using a pillowcase to make a dress or cutting out a rectangle and adding straps is somehow some top secret procedure. It was more of an aside as it's a nice book for techniques.

 

Sorry, I was mainly just referring to first part of that part of the quote, not about the book recommendation. :)

[stripe]

Sure, but that is an actual contractual agreement, not the fine print on a purchase.

(All of my questions come from a genuine interest in discussing this not some "argument" on my part -- I am utterly fascinated by what you've mentioned.)

 

What about software and things like "by opening this package, you agree to install this on not more than one computer, blah blah"? This is different from that sort of fine print because of the nature of the pattern itself?

[LMA]

Not to hijack the thread, what about licensed fabrics? A lot of them say you can't use it to make stuff to sell. Mrs. Mungo, has anything been ruled on that?

[Whereneverever]

Not to hijack the thread, what about licensed fabrics? A lot of them say you can't use it to make stuff to sell. Mrs. Mungo, has anything been ruled on that?

 

Mrs. Mungo addressed that upthread. :001_smile:

[Mrs Mungo]

(All of my questions come from a genuine interest in discussing this not some "argument" on my part -- I am utterly fascinated by what you've mentioned.)

 

It is an interesting topic, because many of these companies want you to believe that they control more than they actually do.

 

What about software and things like "by opening this package, you agree to install this on not more than one computer, blah blah"? This is different from that sort of fine print because of the nature of the pattern itself?

 

Well, some software says that you cannot sell it, but the courts have decided that you can. I posted something about this recently in a used curricula thread.

 

Not to hijack the thread, what about licensed fabrics? A lot of them say you can't use it to make stuff to sell. Mrs. Mungo, has anything been ruled on that?

 

Yep. Info is in the links I posted earlier in the thread. :)

[warneral]

Mrs. Mungo is exactly correct.

 

I'd also like to recommend the forum sewingmamas.com

lots of nice ladies there, and a business forum as well.

 

Hi Hayes glad you're weighing in on this :)

[stripe]

It is an interesting topic, because many of these companies want you to believe that they control more than they actually do.

You're the best, Mrs M. Thanks for all the details.

[mo2]

Fascinating. I've always wondered...

[Just Beachy]

Not to hijack the thread, what about licensed fabrics? A lot of them say you can't use it to make stuff to sell. Mrs. Mungo, has anything been ruled on that?

 

Yes, you may use licensed fabric to make things to sell. The big companies will occassionally send a cease and desist letter to a designer, but the law is on the side of the designer -- as long as the designer has purchased fabric through a retailer and not wholesale. (At least, I believe that is the caveat.)

 

Now, those designers that do all the cute appliques and the people that digitze them.... I believe they are not following the law, but I can't find any info on that subject. I do know Disney came down pretty hard on a couple of designer friends who were digitizing the designs. I also know the company that has "Angry Birds" is pretty tough as well.

 

I run an online fabric store and used to make custome clothing. I was almost denied an account by Robert Kaufman because there are a few photos floating around on the web of disney themed clothing I had made years earlier.

 

ETA: I'm not sewing and selling anymore though, so my info may not be completely up to date.