Let's say you buy a sewing pattern from an indie designer, or maybe from one of the big pattern companies. You use it to make something really beautiful. You show it to a friend who exclaims, "You should sell those!"
You look more closely at the copyright statement on the pattern. Maybe it says you're allowed to sell the things you make, or maybe it says you can't, or maybe it doesn't say anything at all. But what does the law say?
Can a sewing pattern be copyrighted? If so, does the copyright cover the instructions, or the methods used, or the templates? And can the designer legally control what customers do with the things they make from their patterns?
These are really pressing questions for sewing pattern designers and their customers. I've searched for a long time for someone who might be able to give us some real, evidence-based answers and today I'm thrilled to tell you that I've found her!
I'm pleased to introduce Jen Bernstein.
Jen is an attorney and she's an avid quilter. She wrote a series of posts on her blog about quilting and the law in which she addresses the legal issues that sorround sewing patterns. I asked Jen if she would allow me to repost the second article in the series because it addresses so many of the most common questions that constantly seem to bubble up about this topic.
I am very honored to be here today to share a post from my blog series, Quilting and the Law. In my day job, I am an attorney. And when I’m not at work, I love to quilt, craft and travel. As a quilter, I have been interested in legal protections for sewn objects, such as quilts, clothing and toys and sewing patterns. I wrote this post with quilting patterns in mind, but the principles I describe here apply more generally to all types of patterns.
For 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 questions and very few answers. Are patterns protected by copyright? What rights does the owner of a copyright holder for a pattern have? How can a quilt pattern be used by the owner of the pattern? Below is a discussion of some of the important points of patterns and copyright law.
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.
Copyright and Patterns
If an individual creates an original quilt design, they are entitled to copyright protection in the design of that quilt. Now let’s say they create a pattern or tutorial, either free or for sale, based on the design of that same quilt. The copyright in the pattern, which comes into effect at the moment the pattern is created, prevents others from copying or distributing the text and illustrations describing the method for creating the quilt design. Any unauthorized copy or distribution would constitute copyright infringement.
So, there now exist two separate copyright interests. First in the quilt design and second in the quilt pattern. A pattern itself is a description of a procedure, process or method of operation for making something (in this case, a quilt). Copyright does not protect the underlying method described in the pattern because that information is, by law, not an appropriate subject for copyright protection (side note: though it could be the appropriate subject of a utility patent, to be discussed in a future post). According to the U.S. Copyright Office, the copyright in the text and illustrations describing this method does not give the author any right to prevent others from adapting the described method itself for commercial or other purposes or from using any procedures, processes, or methods described in the quilt pattern. For example, you can write a tutorial on a method for sewing together Y-seams and you would have a copyright in the text and illustrations describing your method, but you cannot copyright the method itself nor could you prevent someone from using your method or teaching your method to others.
So what about selling quilts made using a pattern? Can a pattern author restrict this? Is it illegal?
I could not find any case law specifically on this topic. There are some arguments on other sites I have read that say the first sale doctrine, a law governing the resale of copyrighted goods, allows you to sell anything made with a pattern. The first sale doctrine (17 U.S.C. § 109) provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. So let’s give an example. I have legally purchased a physical copy of Tula Pink’s Space Dust Quilt pattern. I make a quilt using the pattern and decide that I no longer have a future use for the pattern so I decide to sell the pattern to my friend. The first sale doctrine protects my right to sell the pattern. So does the first sale doctrine protect my right to sell the quilt I made using the pattern? I would say no, because the pattern itself and not the resulting quilt is the appropriate subject of the first sale doctrine.
I would argue, though, that by creating and distributing a quilt pattern with instructions on how to create the quilt, the author gives implied permission for those possessing a legal copy of the pattern to create a quilt based on the quilt design described in the pattern. This means that when someone creates a pattern or tutorial, they are implicitly extending their exclusive rights in their original work to make copies and derivatives. Otherwise, why would you ever buy a pattern if you were not allowed to make the quilt featured in it? Also, according to the U.S. Copyright Office, an author cannot prevent others from adapting a method for commercial purposes. That is because copyright protection does not extend to any “idea, system, method, device, name, or title.” (For more information, see Ideas, Methods, or Systems). A quilt pattern, in essence, is simply the description of a method and therefore, I argue, anyone can make and sell quilts using the author’s pattern, without limitation, including direct copies and derivative works.
Patterns, Standard Terms and Licenses
So how does this relate to standard terms and licenses? There are many sewing pattern designers and manufacturing companies that include language on their patterns such as, “for personal use only,” intending that the purchaser will not produce and sell a product from their pattern for commercial gain. Or a pattern designer may offer a “limited commercial license” or a “license to sell”, usually at a cost above the price of the pattern, to allow the pattern owner to produce and sell products using their pattern.
There is no case law directly on point, so we must look to similar and analogous cases for guidance. Standard terms, such as “for personal use only,” presented on or within product packaging present special problems with respect to contract formation. One court has held that if a purchaser is unaware of contract terms printed on the box because the transaction was conducted over the telephone, with no mention by the seller’s representative of the license terms, such terms were not binding on the purchaser. (See Step-Saver Data Systems v. Wyse Technologies, 939 F.2d 91 (3rd Cir. 1991). This could be the same for a downloaded pattern or a pattern purchased through an online retailer. But even if the purchaser was aware of the term before purchase, many courts have deemed these “shrink-wrap” terms to be contracts of adhesion, because the purchaser does not have the power to negotiate or modify the terms of the contract. And, as stated above, once someone legally possesses a copy of the pattern, under copyright law they are not restricted from using the methods described in the pattern for commercial purposes.
So what about license agreements?
License agreements are contracts in which a licensor (copyright owner) would grant the licensee the right to produce and sell goods using their pattern. There may even be an agreement of exclusivity, allowing only one or a few licensees to produce products using the pattern and thus potentially increasing the value of the license agreement. In exchange, the licensee usually agrees to some conditions regarding the use of the licensor’s pattern and agrees to make payments known as royalties. License agreements can be valid, but these are usually seen as complex contracts that require the negotiation of terms between the parties. Also, the purchase of a license agreement above the existing cost of the pattern would have no additional benefit to a purchaser, since as we discussed above, once someone legally possessed a copy of the pattern, there is no probably no restriction on using that pattern for commercial purposes.
So I believe that a pattern designer has two basic options. They can offer their pattern for use on a licensed basis to those interested in producing the item for personal use or resale. In this case, they would retain greater control over their pattern because they can negotiate the terms of the license and choose with whom they wish to enter into licensing agreements. Because the negotiation process may be complex and require the drafting of a contract, the licensor and licensee may both want to hire attorneys. In the second option, a pattern designer can offer their pattern for general sale and simply figure the potential resale of quilts made with that pattern into the overall sale price of their pattern. But you probably can’t have it both ways.
Thank you so much for sharing your expertise, Jen!
Jen has generously offered to answer our questions in the comments. (Please keep in mind that this isn't the place to get legal advice about your specific circumstances, but is instead a terrific opportunity to help us all set the record straight and better understand laws in the United States that govern copyright and sewing patterns.)
Please jump in and get the conversation started!