Can You Copyright a Sewing Pattern?

Copyright and Sewing Patterns

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!"

Can you? 

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.

1

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.

She agreed!

Here's Jen.

+++++

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! 

Comments

  1. says

    This is a great post, thank you both for it. Its such a thorny topic and a emotional one. I’m not a designer so I don’t have the same perspective, but it seems to have a lot of the same issues as software companies and programmers deal with. Open source developers give their “patterns” away (in a sense) but the good ones make a good living and have a lot of prestige in their community. And all the food folks posting recipes online have similar issues. But also, I can’t imagine what a gut punch it would feel to see a pattern that I designed being sold as their own by a big company. I wonder too how big of a problem it actually is. Clearly, there are visible examples but I wonder what the actual data is of the number of patterns designed vs patterns/products taken and resold. Probably no way to know that kind of thing though. Anyway, thanks for the interesting read. :)

  2. Lew says

    This is interesting stuff. I give out my free patterns under the creative commons sharealike & attribution licence, which states that pieces made from the pattern can be sold, but the pattern itself cannot be sold and that derivations of the pattern must be distributed under the same licence. I recently had to explain to someone that their mom wanting to slightly modify my pattern and sell it to a big company and become a millionaire wasn’t legal! LOL

  3. says

    Thanks for the comment. I think that your analogy to software is very on point. There isn’t much case law relating directly to sewing patterns, but software is often licensed in a similar way. The analogy becomes even more important when you consider digital patterns, such as PDFs. These patterns aren’t physical objects and therefore the application of the first sale doctrine doesn’t fit well. There is some current litigation looking at the resale of MP3 files, which could lend some guidance, but this area is far from settled. I am planning to address this in a future post on my blog.

  4. Megan says

    I still find this confusing in regard to design. I once saw a quilter accuse someone of copyright infringement because she had created an applique quilt depicting the four seasons, as had the first quilter. The 2 quilts seemed vastly different to me, but the first quilter was sure she had been copied (she used the fact that the depictions of the seasons were in the same order as part of her evidence). It seems to me that it is in the nature of what we do for more than one person to come up with the same design. How then can that design be copyrighted? And when traditional blocks are used, how is this even considered a design that can be copyrighted at all? (And I am talking about the design alone, and not the written pattern or illustrations.)

  5. says

    I think that the creative commons licenses are a great tool for pattern designers that want to provide them for free, such as a tutorial on their blog, but also protect their copyright in the pattern. My next blog post will actually be delving more deeply into the 6 types of creative commons licenses available, how to apply the license to your works and the benefits to pattern designers and quilters in using a creative commons license.

  6. says

    Thank you so much for this post! I have previously researched copyright law as it refers to quilting, and came up empty handed and confused. I hold an MBA in accounting and have had several business law cases – whoever said reading law was easy is wrong! LOL.
    I have two questions. First, how much change would you say is necessary before a quilting pattern no longer holds copyright status? For instance, many patterns now call for a specific fabric line – if different fabrics are chosen, is the copyright no longer valid? Or what about changing the size, or the borders, or setting a block on point?
    Secondly, many quilters these days find inspiration through Pinterest or other websites. If a quilt is replicated based on a picture, not using a pattern at all, is this in violation of the copyright that a designer holds?
    Thanks again!

  7. Kaelyn says

    Forgive me if you already addressed this in your article and I missed it: What about the concept that the quilt made from the pattern is a “useful article” and that the copyright owner of the pattern or design has no legal rights to the useful article, i.e. to prevent a sale. I’ve seen arguments on both sides.

  8. says

    Reading the law can be a challenge, even for attorneys that have been trained to do just that. As to your questions, I think both are covered in my first post, Copyright 101, which you can find here:
    http://www.bravelittlechicken.com/archives/798
    But a brief answer, the substantial similarity test is the standard used to determine whether a defendant has infringed the reproduction right of a copyright. This test is applied by individual courts and juries and therefore what may seem as substantially similar to one person may not to another. It is a subjective test and therefore difficult to give definitive answers as to when something is an infringement and when it is not.

  9. says

    The “useful articles” concept goes to whether the copyrightability of an object, not the resale of that object. Copyright law does not protect the utilitarian aspects of useful articles (See 17 U.S.C. § 101). Therefore, a useful article, such as a quilt, is not protected by copyright law unless it incorporates features that can be identified separately from the utilitarian function. These separate features can be physical or conceptual. Thus a useful article can have features that are both protected by copyright and unprotected by copyright.

  10. says

    OK, I wrote a pattern a few years back for an award-winning quilt. The pattern was sent to China where the quilts were being mass-produced and imported to the United States for the retail market. I hired a lawyer who fought for copyright. I won. I could not go back to the Chinese manufacturer, but successfully sued the importer and retailer. From what your article is saying they were in their rights to copy my quilt design and sell the resulting quilts. But as I understand it, no one has the right to make a profit from my hard work in designing the original quilt and writing the pattern. They were offered the opportunity to enter into a royalty agreement with me, and declined. I’d think if someone was mass producing and SELLING an item for profit, that the designer/pattern writer is at least due a royalty.

  11. says

    This is a really interesting discussion, even to a non-quilter / non-lawyer :-) It’s super to hear you are working on a follow on post about the use of Creative Commons. It seems like CC could provide a legal framework for the online quilting community to grow in useful ways.
    My wife runs a local craft studio, and is often wondering about how to attribute creators of designs and instructional materials she finds on the Web. I suspect having some recognizable, easy to understand ways for designers to communicate how they want their work to be used would be a Good Thing.
    I will be curious to hear what your take is on Lew’s point about CC-SA-BY http://creativecommons.org/licenses/by-sa/4.0/ preventing people from modifying and selling a pattern. I didn’t think CC-SA-BY prevented this. But like I said, I’m not a lawyer.

  12. says

    Great to hear that there is a lot of interest in a post about Creative Commons. As to your point about Lew’s CC SA-BY license, I agree. This license does not prohibit the commercial sale of a pattern that has been made available under the license, it only requires that the work be attributed to the copyright holder. The appropriate license would instead be the CC BY-NC-SA 4.0 license: http://creativecommons.org/licenses/by-nc-sa/4.0/

  13. says

    I can’t comment specifically on the facts of your case, but I agree that licensing agreements for the production and sale of a copyrighted design are valid. I believe though that when you write a pattern for a design, you are impliedly giving the pattern holder the right to reproduce your design. Absent licensing agreements to the contrary, the pattern holder can produce the design and arguably sell it. This is my own reading of the law. Various legal theories could apply and since there is not much legal precedence on sewing patterns, ambiguity still exists. A good lawyer will develop an argument that supports your case and convince a court that it is the correct result.

  14. says

    interesting. i find the independent designers who charge gobs of money for home sewists to have the right to sell finished items (i’m thinking mostly garments in this case) to be somewhat offensive. the idea of a pattern designer charging someone $6 or $10 per garment for the rights to sell it has stopped me from buying and sewing patterns from some designers.

  15. says

    If the work is protected by copyright (which is another determination altogether), the artist generally has the exclusive right to any reproduction. Taking a picture is a type of reproduction and therefore is a violation of copyright law. This is the case even if you don’t plan to post the picture publicly, like on your blog, but rather just hang the photograph in your home.
    As a practical matter, it is unlikely that you will be sued for taking a photograph unless you make it public and the the designer finds out about your copy. Designers may also not mind the use of their images if it benefits their own commercial interests or has no negative effects. Many quilters would be happy to see their designs featured on other people’s blogs. But it is important to remember that, without their permission, they could sue you for copyright infringement and substantial damages, if they choose. As a general matter, you should always request permission, in writing, from a copyright holder before posting anything online or distributing it by other means.

  16. says

    I think this post was timely and thank Sara for reposting it in her facebook feed, bringing it to our attention. I totally agree with the writer, I have always thought it pretty ridiculous that a pattern designer who has received payment for the pattern could have any right to decide what a purchaser makes with that pattern. Of course, nobody has the right to reproduce the pattern/instruction itself and sell that, but the derivative work – i.e. the garment/quilt – of course the person who made that is free to do whatever they want to with it, including sell it for a profit.
    I think it’s bad form for a huge Chinese company to “steal” a design like somebody says above, but I do not really see any difference legally between that and a small-scale WAHM producing the same quilt/garment for sale. It is both ok if they acquired the pattern by paying for it.
    Saying otherwise but be just like saying that a person would not be allowed to sell a meal they cooked based on the instructions found in a cookbook they bought. Imagine a cookbook which includes a recipe for pancakes. Somebody wrote it down, and owns the copywright to their cook book. Can that person go and sue anyone that sells pancakes made according to the same method and ingredients described in their book?
    NO! And besides; how could it be proved that the pancake maker didn’t come up with the pancake recipe on their own? How can you ever prove that somebody sewed up a garment or quilt based on a certain pattern that somebody else wrote? Is it not possible for two people to come up with the same idea independently? There really are only so many ways to sew an A-line skirt. Or a six-gored skirt. Or a pair of leggings. You get my drift…?
    Great post!

  17. says

    This is really fascinating. I’ve toyed with the idea of an Etsy shop (far from mass marketing), but have been afraid regarding what people write on patterns – even free blog tutorials. Thanks for answering some big questions.

  18. says

    This is great! Thank you! I do have a question: Recently an instructor at a quilt shop wanted to use my pattern to teach a class. Is that legal, as they can do as they please with or without permission from me? Or do they need my permission to use my pattern in that way? Does the answer change if it is a pattern I offer for free? What if each student personally buys the pattern from me, or from the quilt shop assuming they purchased the pattern from me to sell as retail. I asked a friend for advice on this matter and she said she charges them a set amount per student for using her material as course material. Is there any standing behind doing it that way? Or can the quilt shop still go around that and use her pattern?
    On my patterns I include on each page “All rights reserved Copyright (the year) and my name”. Mostly I started doing this because I saw it on many other patterns. Does this even mean anything? Mostly referring to the All rights reserved. I also state not to copy, alter, redistribute or sell my pattern in any way without written permission. After reading this post, I assume this all protects my text and illustrations as you stated, and does not refer to anything that they physically make from the patterns.
    One more question: do I need to literally register my patterns with the copyright office (or whomever does that) to have protection of my pattern? If I don’t, does it void my copyright rights?

  19. says

    Thank you for such great information! I have a small (but growing) sewing shop, and I have been faced with the issue of some patterns expressly claiming I can not use it to make items for sale, only personal use. Others state I can make “limited quantities” for sale as long as I credit them with being the pattern designer. But I am too creative, and once I make an item from the pattern to learn it, the item I make to sell only uses the pattern as a guide and I alter it for my finished item. So my question is, if I base items I sell on a pattern but have added pieces or alter the design, is it still considered the same pattern? One instance is an older commercial doll pattern. I redesigned the doll body, significantly altering the head shape, feet, and how the limbs are attached. I made my own paper pattern with the alterations. I don’t intend to sell the pattern (although I may offer it in a tutorial on my blog in the future) but I do intend to sell the dolls. Am I infringing on any copyrights if I alter and remake/redesign a pattern for a finished item? And can I call my new version an original design?

    • Thalia says

      My question is: why would you buy patterns from such a dictator seller in the first place? Safe yourself the headache; there are plenty of other sellers out there who won’t stifle your creativity.

  20. says

    Jen, this is all so interesting! Thank you so much for being so generous with your time. Can you give an example of how a useful article can have both unprotected and protected features? Also, if I buy a pattern that states that I cannot sell the item that I make from that pattern, or that I must first purchase a license agreement in order to do so (let’s say a quilt), can I simply ignore that statement?

  21. says

    I totally agree, Rachael. I have just learned to steer clear of those designers. But my question to Jen is, are they within their rights to demand the royalty, and, if not, am I within my rights to simply ignore the demand? It’s very confusing, so I just avoid the issue altogether and stick to designs that are either in the public domain, or come up with my own designs. (I am primarily a quilter)

  22. Cheri says

    This is a great article as I, too, have been looking for information about copyright law and quilting. I would also like to know about copyright with regards to fabric. I have seen some fabric which states something like, “for personal use only”. Does this mean that I can not purchase the fabric and then make things to sell with that fabric? Example: making childrens’ pajamas from a licensed line of fabric (Disney, etc.)

    • Thalia says

      If you buy the fabric, you can use it however you want. This is the first sale doctrine. The problem with disney isn’t the fabric, but the trademarked characters depicted on it. That’s a whole different ballgame. If disney made a fabric with green and blue stripes, you can use it anyway you please. But if it has Donald Duck on it, a trademarked character, then different rules apply. What those rules are? I have no idea. Just know there is a difference between copyright issues, first sale doctrine and trademarking.

  23. says

    Nevermind on my first question. I just read one of your previous posts. But now I have a new question! HAHA. Does the protected feature of a useful article trump the unprotected feature as far as a maker’s ability to sell the article?

  24. says

    For useful articles, the composition of a quilt (the overall design, layout and color scheme), if original enough and not previously within the public domain, would be copyrightable. The utilitarian aspect of a quilt as a “blanket” or “bed covering” is not copyrightable. Clothing, for example, is also considered a useful article and courts have pretty much found no protection for clothing designs overall because they see the utilitarian aspects aa outweighing the creative expression in clothing design. This is not to say clothing patterns have no copyright protection. The actual text and pictures in a clothing pattern are copyrightable, but it would be very hard to prevent someone from mass producing and selling identical clothing items, given the current state of the law. This is why you can often go to a discount clothing store and find “knock-offs” of your favorite expensive designers.
    As far as ignoring the licensing statements on a pattern, I would say you do that at your own risk. I could not find any case law about the validity of such statements. This could be because no one has sought to enforce the “for personal use only” shrink-wrap licenses, it could be because all of those cases have settled out of court (which provides no legal precedence for people to follow) or it could be because I didn’t search well enough (searching for legal cases can be tricky, much like google, it is usually based on keywords).
    Because there has been no enforcement of such terms does not mean that there never will be. Right now the applicability of shrink-wrap licenses is being tested in other areas, such as computer software. Courts all over the country have come to different conclusions about the enforceability of such licenses, which makes it hard to advise people as to the risk of ignoring them. No of the problems is that bringing a copyright infringement suit can be very expensive. Unless the person producing the item for sale is very wealthy or making a large profit from the sale, it might not be in the copyright holders financial interest to bring suit. But if the infringement continues, this will weaken your rights and possibly preclude you from asserting them later.

  25. says

    I somewhat answered this question in a previous comment, but I want to say there is a distinction between clothing and other sewn items such as quilts. Clothing is considered a useful article are therefore it has little copyright protection overall. There is quite a bit of case law in this area and courts have pretty much found no protection for clothing designs overall. This is because they see the utilitarian aspects of clothing, as something to keep us covered and warm, as outweighing the creative expression in clothing design. Big name clothing designers have tried to shut down the manufacturers of knock-off items and pretty much failed.
    The underlying clothing pattern has copyright protection, but the design in the clothing item is simply not protected by copyright. There is the possibility that it could be protected by a design patent (but a big if), but I doubt many (or any) indie clothing pattern designers have design patents. It would be very hard to prevent someone from producing and selling a clothing item that was substantially similar or even identical to an item made from a clothing pattern given current law.

  26. says

    Thanks so much for the comment! I like your analogy for cooking recipes. I think it is somewhat similar. In a previous comment response, I talked about clothing designs having less protections than other types of sewn items, such as quilts. Your comment about there only being so many ways to sew a certain garment is part of the legal reasoning that courts have given for clothing designs not having copyright protection and limited design patent protection. Could you imagine if someone had a copyright or design patent for the A-line skirt? And someone would have to pay them royalties each time someone wanted to make one? It would potentially make the cost of clothing prohibitive!

  27. says

    I enjoyed this post, thank you! I’m a lawyer, but not a copyright lawyer, and I don’t know much about it. But I also thought of software right away. These days, a license agreement can be as easy as clicking “I agree” on a pop-up window. The parties definitely don’t need to “negotiate” those licenses – most software is “take it or leave it.”
    I can definitely understand a designer not wanting their design to be sold, especially on a large scale. While it may be legally questionable, until the courts come down clearly on the topic, I think they can keep asking for the license. It sounds like, reading your thoughts on it, that the law is still not clear – thus it’s legally defensible on some level. Asking people to buy a license provides the designer with a little extra cash, and the likelihood that a small scale designer would actually go to any lengths to enforce the license requirement – well, my guess is that it rarely happens.

  28. Libby says

    My question has to do with names. I enjoy sewing a variety of clothing and home good items (think purses, aprons etc.) An example: There is one apron I like very much (The Emmeline by Sew Liberated) but the designer runs a limited license program (http://sewliberated.com/products/cottage-industry-labels) You pay $5 per label which gives you a right to sell that item for profit. My particular question: is the name of the product then copyrighted ? Can I use the name “Emmeline” in my advertising or is that only permissible with the purchase of cottage licensing ?
    (As I said, this is just an example. I currently avoid the situation by not selling them !)

  29. says

    These are really great questions. I will tackle them one by one.
    1. It depends on how the instructor is conducting the class. The instructor cannot just copy a pattern and distribute it to the class participants. If they each need a copy for the class, then the student or instructor will have to purchase a legal copy for each student to use. If it is possible for the instructor to teach the class without each student obtaining a copy and without reproducing any part of the pattern, then they can do so without violating copyright.
    If the pattern is available free, this presents another interesting issue. For patterns available for free, such as a blog tutorial, the copyright holder still has the exclusive rights of reproduction and distribution. When someone prints out a free blog tutorial, they are technically violating the reproduction right. And if they give away the printed tutorial, they are technically violating the distribution right. You could argue that the tutorial writer has impliedly given at least the reproduction right to their readers so that they can print out the tutorial for use, but there is no precedence for this (that I am aware of). This is partly why I think Creative Commons licenses could be useful for online tutorials, which I plan to explain in my next blog post. In this case, I think the best course of action is for the instructor to obtain permission to print and distribute the free pattern to the students.
    The method of charging a set amount per student for use of the pattern as course materials is another possibility. You would basically be creating a licensing contract that allows for the reproduction and distribution of your pattern at a cost per student in lieu of each student purchasing the pattern separately.
    2. The language you are describing is called a copyright notice. It is meant to give the reader notice that the material is protected under copyright. Works published before January 1, 1978, are governed by the 1909 Copyright Act. Under that law, if a work was distributed without a proper notice of copyright, all copyright protection for that work was permanently lost in the United States. Under the 1976 Copyright Act, works created after January 1, 1978 no longer require a copyright notice to obtain copyright protection, but the use of a notice is often beneficial because it allows others to know that the item should not be copied, reproduced or distributed without the copyright holders permission.
    3. You are not required to register your pattern with the copyright office, but there are benefits to doing so. I talk about the benefits in the my first Quilting and the Law post, here:
    http://www.bravelittlechicken.com/archives/798

  30. says

    I would first determine if they older pattern that you are using is protected by copyright. Designs created before 1923 and designs created between 1923 and 1977 without a copyright notice are considered in the public domain and therefore you are not infringing any copyright protections. You also need to determine if you are using the actual design of the dolls or the process to make a doll. Processes and methods are not covered by copyright (though they could be covered by patents) and therefore if you are using the pattern like an instruction manual, but redrafting the actual pattern, then you are not infringing on the copyright. Finally, if the pattern is covered by copyright and you are using the actual pattern, then the analysis of a court would to determine if your doll pattern was substantial similarity to the original. Courts use a lot of different tests to determine substantial similarity and it is somewhat subjective as well. It is hard to say one way or another exactly when alterations will become enough to make something no longer substantially similar to the original, so this will always be at your own risk.

  31. says

    I haven’t done a lot of research on the use of fabric in items for personal use and sale. I have some ideas about this question, but without more research I don’t feel that I can speak to this with appropriate authority right now. This is something that I am planning to address in the future though, so feel free to keep any eye on my blog.

  32. says

    Names are not actually the subject of copyright law, but rather trademark law. This is something that I am planning to address in the future, so please keep an eye on my blog.

  33. says

    I agree with your analysis. I think that these shrink-wrap and click-ware licenses are becoming more common, but the law is still not settled as to their enforceability. Some have been upheld, some have been struck down. Designers can keep asking for a license fee, I agree, but I think there is a possible argument that they aren’t valid and without much in the way of resources to litigate the issue (from either side) we may not know for sure. But as to clothing, I think there is a very good argument against paying any kind of licensing fee. As I have stated in other comment responses, clothing simply doesn’t get the same kind of protection that other sewn designs would be afforded.

  34. says

    Both the protected and unprotected features exist within the same article and cannot be separated. If a court finds that a useful article has protected features, then those features cannot be copied, even though it is also has utilitarian features. You can’t copyright all quilts because you made a quilt, but you can copyright an original design. Hope that answers your question!

  35. says

    Interesting discussion and information here. There are similarities and differences with copyrighting art or photography. It’s like the pattern is a painting or photograph. That image is copyrighted. You can purchase one or 100 pieces of art/patterns. If you want to use that image you have to be careful to follow copyright. If you make a quilt that is a visual copy, in fabric, of a piece of art I bet you would have to worry about the amount of difference there is to the image/design to not be violating copyright. Especially if you are selling the item. Patterns are available for purchase not as decoration, or to hang on a wall, but to expressly make an object. So you can sell the object but perhaps can’t use a photograph of the object to advertise as that image is the design/copyright of the copyright holder? In a pattern if you use it as an instruction manual and your product ends up different, then there is no worry about copyright? Just thoughts, wonderings and musings.

  36. Claudia TN says

    Great information. I am trying to read all of the posts and not duplicate questions, but I’m not sure if this was answered to my satisfaction. I am not currently selling any goods, and may or may not ever sell them because of so much uncertainty, but if I just look at an item – a quilt or bag or other sewn item – and figure out how to make it without the actual pattern, does that infringe on any copyright laws?
    As someone has mentioned, with all of the images floating around the Web, it is sometimes hard to find out where a pattern first originated. And as I look at some of the new copyrighted “modern” quilt patterns, many of them have used old quilt blocks -probably now in the public domain – as their inspiration.

  37. says

    When I wrote my blog post about copyright, a few years ago, I also consulted with an attorney friend but was given different information. I was told that quilt designs, pattern directions, and photographs can be copyrighted but the actual garment sewing pieces cannot and therefore what you make with a sewing pattern cannot be copyrighted. This is for clothing sewing only.
    http://handmadedresshaven.blogspot.com/2011/07/copyright-and-hohttpdraftbloggercomblog.html
    Can you comment on this? Is what you are writing only applicable to quilting patterns? Not to clothing patterns?

  38. Lew says

    I’m looking forward to that! I end up communicating with a lot of beginners and younger people in regards to copyright, and your articles are going to be a tremendous resource.

  39. says

    Thank you Jen. Great points to think about, and you gave me insight I hadn’t thought of. Very helpful. As a writer, copyright is almost sacred to me. :-) So I am so careful not to infringe. Thank you for all your friendly assistance to all of us with questions!

  40. Claudia TN says

    I think I found the answer in your two examples of the ABC quilts in your original article on copyrights. That helped to clear it up.

  41. says

    Thank you so much for these explanations. I have been fortunate to find a pattern I love for making dolls from repurposed materials. The doll was developed by a parenting instructor in Japan about 30 years ago. Many years ago, I asked for and received permission to make and sell these dolls although I have now altered the pattern some to accommodate different materials. I also sell kits with precut doll pieces using the original pattern and intended material as many mother’s groups do in Japan. Now that I have become more visible in the media, folks are asking to buy the pattern. I have been very clear that this pattern is still in print (in Japan) and available through Amazon Japan. But it’s no secret that if one buys the kit, one effectively has the pattern. I don’t want to violate any copyright laws but the practice of sharing these kits and dolls within the mothering community is widespread and acceptable to the original designer. Am I doing enough to protect the original copyright by letting people know where they can buy the pattern? It’s a bit tricky since this is a different community where sharing sewing and home making skills and techniques are more open and the author enjoys seeing people make these dolls for children.
    Thanks Abigail for inviting Jen, and thanks Jen for helping us out with your expertise.

  42. says

    Thank you for this interesting information. I assume that this information would apply to knitting patterns as well, am I correct in that?
    I have always felt that if you don’t want people to make stuff from your ideas then don’t tell them how to do it (i.e. sell the pattern.) Otherwise, you need to let it go. It hardly seems fair that as a seamstress I can’t charge someone for the hours and hours of time and materials I put into a project.

  43. says

    I responded to this in a previous comment response, but in case you didn’t see it I will summarize here. Clothing is different than other sewn items such as quilts and isn’t afforded the same protection. The pattern itself can have copyright protection, but the design of a piece of clothing does not have protection and can generally be copied without infringement.

  44. says

    Glad my Copyright 101 post helped clear this up. Copying a sewn item that has copyright protection, even without a pattern, will constitute infringement. The exception to this is clothing designs, which do not have copyright protection and therefore can be copied without infringement.

  45. says

    Unfortunately, I cannot speak to the copyright laws in Japan. I would consult an attorney in your country to determine your rights and responsibilities with regards to the doll pattern.

  46. says

    This information would generally apply to knitting patterns as well. There are a few potential issues with knitting patterns that could arise. Many knitting patterns are for clothing items, which don’t normally have copyright protection. A sweater done up in just garter stitch, even if the design of the sweater was interesting or new, would probably be regarded as simply a piece of clothing and not have copyright protection. But knitted designs, if original, could likely be separated from the utilitarian aspects of a garment to be afforded copyright protection. The combining of knitting “methods,” such as knit, purl and cable, can create original artistic designs that rise to the level of copyright protection. Knitting, in essence, is the creation of cloth or fabric. Fabric designs can be copyrighted. Knitted designs may also be good subjects for design patents. I plan to cover design patents in a future blog post, so please keep an eye on my blog.

  47. says

    Making a quilt which copies or is inspired by a copyrighted image, such as a photograph or a work of art, would be an infringement absent the consent of the copyright holder. If you wish to make a quilt based on another copyrighted work, make sure to obtain permission before creating the quilt design.

  48. Toby says

    I have gone round and round with people about copyright and Cottage Licenses just get my ire up .. there are two attorneys in my family (I’m in Canada so perhaps our rules are different) .. I used to make mohair bears by hand along with hundreds of other people world wide .. I designed a pattern for a bear but I didn’t bother to copyright it (because I couldn’t) and didn’t sell it .. the thing is, there’s only one way to make a bear .. some have bigger eyes, fatter belly, some are pandas, but they are all made with two legs, two arms, a body, a head and two ears … it’s merely my method of assembly that I’m writing down .. I never bothered buying other bear patterns from designers who said “you can’t make bears to sell from this pattern” .. ok, no problem, there’s a thousand other patterns that will all look similar, I don’t need YOUR method .. what does it matter who’s pattern I use? I now make bags .. I got a pattern from someone who wanted me to buy a Cottage License for $100 then I could sell six per year .. I don’t think so .. I don’t want to take her pattern, copy it and sell it as my own .. what I make from her pattern is mine .. she has no claim to that .. it’s merely her method of putting that bag together .. what about all those library and grocery tote bags out there that all look the same? It’s a square bag with handles .. how does anyone know which tutorial you made your grocery bag from? I agree with the pancake analogy .. if I made muffins I could sell them at a bake sale if I so wanted .. I’m not copying down the recipe and selling that ..
    Some years ago a designer of bag, clothing and fabric saw a lady at a craft event selling dresses made from her fabric and took her to court .. the selvage of the fabric said “for personal use only” .. it was thrown out .. the judge said why do most people buy fabric if not to make and sell things from it? He said she had no control over the fabric once it left her design table .. her job was to make a design and put it onto the fabric .. once Mrs. Home Sewist bought it, it was hers to do with what she wanted .. she wasn’t copying the design or trying to sell it as her own, she was merely using the fabric to make a useful article from and she was permitted to sell the finished product …
    I have a friend in the middle east where there is no such thing as copyright so you are always at risk of someone taking your design and mass producing it and you have absolutely no recourse.
    Thank you for posting this Jen!

  49. says

    Great post Abby and Jen, I am so thankful!
    An other variation on the same theme:
    I bought on line an embroidery USB stick with Laurel Burch doggies. The price was $75 and nothing was stated on picture or listing about restrictions.
    My aim was to embroider items to sell on Etsy.
    When the package arrived I saw on the back with small letters ‘for personal use, etc’. And software is not returnable. But who pays 75 bucks for an embroidery pattern for personal use?
    I’d love to hear your vision on the question.

  50. says

    Thank you for your comments. I think your experiences highlight why people can become so frustrated with this area of law. There are a lot of misconceptions about copyright and my major goal with my blog is to help people make sense of the law and understand what their rights and responsibilities are with regard to copyright (and other laws).

  51. says

    I haven’t thought specifically about embroidery designs, but this example is analogous to the Step-Saver Data Systems v. Wyse Technologies case. The problem is though that not all courts have come to the same conclusions about these contracts of adhesion, so it’s hard for individuals to know how they can act with respect to such terms. These terms will often simply have the deterrent effect desired by the seller and people will refrain from using the designs for commercial sales. If someone does use the design and the copyright holder finds out, then often the amount of money at stake is not enough to warrant expensive litigation. If the copyright holder does pursue legal action, I imagine lots of these cases probably end with settlements outside of court. The downside to settlements is that they leave no legal precedence to guide individuals’ actions when faced with a box that says, “for personal use only.”

  52. CeLynn says

    Thanks for sharing all the helpful information . My question pertains to bags/purses,would they be considered the same as clothing i.e. utilitarian,so therefore you could sell bags made from the pattern?

  53. says

    Those terms deter all right, the thing has been gathering dust since purchase.
    What I find specially interesting is that an embroidery design is, in my view, a design and a tool or a supply at the same time. You need the physical object -the USB stick- to do your thing, With a PDF you only need to learn what is in it to make your item.
    I see more similarities with a fabric (that is design and supply both), that is forbidden to use commercially ???

  54. says

    Like clothing, bags have generally been found to have limited copyright protection because the utilitarian aspects (to hold and carry our possessions) outweigh the artistic design of the underlying bag. Some big handbag designers, such as Louis Vuitton and Coach, have used company logos printed directly on the bags as a way to claim protection against copyright infringement and fight against some knock-off bag manufacturers. This protection only extends to the extend that the design on the fabric/leather adorning the bag has copyright protection. In the realm of indie patterns, the argument would be harder, since a home sewist will use whatever fabric they choose to construct their bags.

  55. says

    I have found this site to be a good compilation of case law directly relating to sewing, knitting and crafting, but I disagree with some of the analysis they provide for the cases. I commend the work they are doing in an effort to inform the crafting community, but as they say in their disclaimer, they are not attorneys. As we as a community try to educate ourselves on these issues, it is always important to think critically about the credibility of our sources of information. And nothing can take the place of consulting an attorney. The law is never black and white and the answer to a question can change (even dramatically) based on the specific facts of each case.

  56. says

    Great post – thanks ladies! One question I’ve been pondering about is are you allowed to design a pattern (which I would then sell) to make something like a Millennium Falcon (star wars ship) from felt? I know the image/name is probably under copyright/trademark but as it is a pattern for people to make themselves something I wasn’t sure if there was any wriggle room! (I’m in the UK if that makes a difference) Thanks, Simmi.

    • Michelle says

      You would have to get licensing rights from the company that owns the rights to the movie or movies. You may be able to work out an arrangement to pay them royalties each time you use the pattern you devise. Depending on how much you sell this may or may not be cheaper than purchasing an unlimited license. All you can do is contact the company and ask them.

  57. says

    I can’t speak to the laws in the UK. But this is an important question, so I will discuss how this interacts with US law. You need to get permission from the copyright holder before making any work that is a derivative of a copyrighted work. Sometimes a copyright holder will simply grant you, upon request, the right to make derivatives and distribute those derivatives. Other times you will have to pay a licensing fee to use the content. With a large company like 20th Century Fox (the rights holder for the first 3 Star Wars movies, I think), this will most likely entail a licensing fee.
    If you do not seek permission, you will be infringing the copyright and this means the copyright holder can sue you, if they choose. Sometimes copyright holders will choose not to pursue legal action because small designers don’t have enough money to justify the cost. It is also possible that they see such things as a form of promotion to their brand. The scale will often tip towards pursuit of litigation if they feel that a product is making a lot of money and they are losing out on potential licensing revenue or if the derivative work hurts their brand in some way.
    The key point though, is that by engaging in this kind of action, you are opening yourself to risk of being sued.

  58. says

    I plan to address the issue of fabric in a future post on my blog. There is some case law that covers that which I think will give great insight. I haven’t done much thinking in terms of how embroidery designs interact with copyright law, but your suggestion that they are both a design and a method at the same time is interesting. Definitely gives me something to think about and another area of legal research to pursue. Thanks!

  59. Crystal says

    This type of thing is exactly my frustration with the knitting community. I see the most outrageous copyright claims over what basically amounts to a square of garter stitch (“I came up with this pillowcase and I deserve to be paid for it!”) And of course every one of their ridiculous “copyrights” insist that no one is allowed to make the item for the purpose of selling it. It feels like it’s impossible for someone to try and supplement their income nowadays selling any kind of crafts at all.

  60. says

    On your comment “the copyright holder still has the exclusive rights of reproduction and distribution” this is very tricky to enforce when it comes to items offered for free, as I’ve experienced first hand.
    I had a relationship with a very well known quilting supply company who asked if I’d be willing to have one of blog’s my project patterns (which utilized one of their products) and my project photo (with my copyright on it) printed as a free project flyer for a very large chain craft store. It was on my site as Creative Commons. I agreed as I was credited by name on the draft sample as the creator & copyright holder. When it was actually printed & distributed in stores nationwide, my name was removed and the supply company was created as the creator & copyright holder. They even cropped my photo to remove my copyright on it. The supply company claimed “they were not aware” that the chain store had a practice of not crediting individuals on project sheets and the chain assumed I worked for said company. The supply company claimed they’d fix it when they needed to print more. I hired a copyright lawyer who did a cease & desist, but it was ignored. While my lawyer said I had a case of infringement, the issue was the pattern was being offered for free so I couldn’t prove a specific price for damages. Even though both companies were getting something of value out of my work, I couldn’t put a dollar amount on the publicity they were getting. I was told it would have cost me more to battle them in court than I would probably win in damages. It rankles me because I still see my sheets offered in stores, years after the fact, and no correction re-print was ever done.

  61. Janet Maurer says

    My daughter is a copywrite attorney. I asked her opinion about this subject. Her
    opinion is this- I was with her until she said that anyone can make and sell as many quilts and so whatever they want with the quilts. I don’t believe that a person could make quilts from your patterns and sell them. If that is what she was saying. That is copyright infringement. Yes they could sell that one copy they bought of your pattern, but not quilts they made from it. That’s my opinion. As a designer I have read many articles about this topic and they agree with my daughter

    • Thalia says

      Wrong. Copyright is about COPYING. Tracing. Xeroxing. Downloading. When I buy a pattern, and put it online, that is copyright infringement. FOLLOWING instructions is not the same as COPYING them. Its a whole different animal.

  62. Thalia says

    This is an autistic crafter’s nightmare, let me tell you. We want black and white. We crave it. We NEED it. Ifs, buts and excepts drive us absolutely batty. It gives me headaches and even nausea to the point where I’m afraid to touch a gluestick. Clarity from an attorney? Bah. If there is even one attorney that says something different than his or her 99 colleagues, I completely panic. Why can’t there be one simple rule for all of this? “You can’t copy the pattern, but you can do with the result of following it whatever you gosh darn please”. Simple and clear. It would make creative life so much easier.

    • says

      It would, but the US legal system is based on precedent. It’s not a black and white set of rules. And that’s a good thing. It means that we can decide over time to give more people the right to vote, for example. We have a system in place that, while flawed, allows for us to figure out how to the law should be applied in specific cases.

  63. says

    The misconceptions floating around the sewing world are just outrageous, in my opinion. I’ve been dealing with the ignorance from a very small, albeit vocal, group first hand for the last 3 months now. Nobody owns the use of construction techniques. And has been said, you can’t copyright an “idea”, either – and if it’s a utility item, you can’t patent it.
    I made a pattern from the ground up earlier this year to hold sewing gear. I make no bones about the fact that I used the same construction techniques as another bag. But I made a bigger bag that had different functions that performs much better for my intended purpose. All hell broke loose over it – because many crafters truly don’t understand “innovation” does not equal “copy”.
    It’s totally crazy, in my opinion, that *anyone* could take a position that because someone made a small “whatever” that someone else can’t make an improved bigger one.
    Lastly, I think it’s utter greed an arrogance for any designer to say that someone can’t make an item from their pattern and sell it. I realize this article touched on it – but the lack of case law almost proves that there is no case. (can’t prove a negative, I know) But the fact remains, in my opinion, that when someone makes something, it’s *theirs*. It is their property and only exists because of them. They surely have the right to transfer ownership of it! What difference does it make if they sold it or gave it away? And just *how* can that hurt the designer? I think it’s just hoooey to try to impose limits on resell. If someone goes through the expense and labor of making one of my patterns up – I take the position that they can do what they want with it!.
    Great conversation. :)

  64. Michelle says

    Thank you so much for spelling all of this out for us. I actually contacte the copyright office about this some years ago. They specifically told me it is legal to sell the resulting item from a purchased pattern. Now, being a writer and a person completely against plagiarism, I would feel more comfortable in giving the designer credit so my crafting friends could purchase it for themselves as well. Think about it, if you could never sell a quilt made from a pattern, no shop could ever sell its samples unless they own the rights, and I can assure you they all don’t. Another thing you cannot, or at least should not, do is enter something made from a pattern into any contest or show as if it is your own work and design. If it calls for original design make sure it is yours. That is just decent, whether it is the rules or the law or not.

    What I have considered doing is buying enough patterns for things I want to make and requiring each customer purchase the pattern for themselves. Then, they pay me to make the pattern and the pattern belongs to them. No designer can dictate who will complete the project once it is in the hands so-to-speak of the purchaser.

    • says

      Having the customer buy the pattern and then hire you to create the finished item seems like a terrific strategy. Thank you, Michelle.

  65. shoemaker says

    Really enjoyed this post. While I am not a quilter, I do sew and friends sew and I have run across questions twice this week on these issues.

    Jen, I read your copyright 101 post….excellent! I was particularly struck with useful articles provision vs artistic expression, design, etc. Both instances I have run across is about very useful articles….one being a fabric chair restraint for a toddler and the second being a pair of soft soled shoes.
    Both have three simple pattern pieces…..strips of cloth a certain length and width for one and oblong pieces to the other. In both instances, the blogger who providee the pattern and the tutorial demo says that you cannot commercially produce the item you see using their pattern. One blogger said her pattern was a modification of a 1970s pattern herself. Another said you have to ask for pwemision and or licence to produce the shoes.

    My question without it being legal advice I understand, is….based on the copyright principles I read, how can either of these patterns and items be 1) artistic and have a moderate amount of creativity. 2) they are both super useful articles

    In the baby shoes issues, I have even purchased a pair of softsole shoes for my son which he has outgrown. I can easily trace around the pieces and replicate the pieces but finding an online pattern is just a hint faster. They require a sewing machine and an ability to trace three simple pieces and thread elastic. How can someone possibly require someone tracing three basic shapes onto fabric or leather using a pattern they have posted for free ….but are labelling as for personal use and needing a licence otberwise.

  66. says

    Very interesting post, I had given this no thought previously (indeed I would just copy patterns outright for whatever small-scale purpose).

  67. Becky says

    My question concerns buying a magazine related to any kind of craft; sewing, knitting, beading, crocheting- if you buy the magazine, would it be copyright infringement to make and/or sell or teach from the patterns in those magazines? I have looked throughout
    the magazines and see no disclaimer, etc.

    This article has been very informative and interesting! Thanks!

    • says

      Hi Becky,
      I know you can’t photocopy and distribute the content of the magazine (so if you’re teaching from a pattern in a magazine it’s a copyright violation to photocopy the pattern and distribute it to the students in the class). As far as selling items you make from a magazine pattern, I really don’t know. Maybe email Jen directly and ask her?

  68. Dyan " DYNEAU" Barrett says

    I need information on how to go about selling my original design to a pattern company. It is not a dress or piece of clothing and it has not been invented or designed until I recently did. I need information as to how to go about selling my design to a pattern company as well as protecting myself form a company stealing the idea without paying me for my design? I thought about drawing out my design with directions and all the information needed to make this then sending it to a lawyer in order to get it notarized. I do not have copy right money. My son died and I went into debt almost over my head. This would give me the break I need to get all the debt off my back. If anyone can give me some factual information as to how to do this correctly, I would greatly appreciate it? Dyan ” DYNEAU DESIGNS

    • says

      I’m sorry for your loss, Dyan. I’m not sure having the pattern notarized by a lawyer is the right step. Registering a copyright with the Library of Congress is not expensive (under $100) and just takes a few weeks to process. I think that might be a good bet for protecting your design because if someone copies it you’ll have proof of your original idea.

      As far as selling it to a pattern company, I’m not sure how you might approach that. Are you hoping to have one of the big two pattern companies license it from you? Or are you just looking for a patternmaker who can draw the templates you need?

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>