Before I begin the summary on copyrights as they apply to needlework, I'd like to say I am NOT a lawyer and cannot answer all questions about United States copyright law. I did research on the topic at Keyword: COPYRIGHT on AOL. In this area, the government has explained to some degree what copyright law protects in this country. There is also a link to the U. S. government website having to do with copyright.
If we all learned anything whe we discussed copyrights, it's that there are big differences in opinion on the subject. There are areas of the code that seem to muddy the waters about what can and cannot be done with copyrighted material--most notably for our class, needlework patterns. If this is of major concern to you, both the government and I recommend you contact your lawyer.
U. S. copyright law extends to the copyright holder certain rights such as the rights to reproduce the work; to prepare derivative works; to distribute copies to the public by sale, other transfer, rental or lease; and to display the work publicly.
The copyright owner can be, but does not have to be, the creator of the work. (S)he may transfer the copyright, usually by means of a contract, to someone else.
A copyright, contrary to some beliefs, exists from the time the work is put in tangible form. If, for example, I am designing an original chart, the copyright law protects me from the time I begin to put the design on paper. The work is considered personal property. The government does, however, suggest copyrights be registered with the Copyright Office to afford the owner protection under the law. Registration records provide proof a copyright exists and has existed since the date it was registered, so infringement can be more easily proven in court.
Registration can be granted to the author (creator), the owner, or to an authorized agent of either of the previous two.
Needlework patterns fall under the heading, Visual Arts, in the U. S., so they are not governed by exactly the same laws as books.
Although there is some controversy about this, the government says there is no such thing as an international copyright. There is an agreement signed by quite a few countries (the Berne Convention) that says the countries who signed it will abide by each other's copyright laws.
How long does a copyright last? According to my reading, it lasts until 75 years after the death of the copyright holder. Then, the work may become public domain.
If a chart, for example, does not have a copyright notice, does that mean it isn't copyrighted? Not necessarily. Works from certain periods of time are not required to have the notice on them. I refer you to Keyword: COPYRIGHT if you want to know specific info about this.
Where those of us who do needlework run into problems is primarily under the "fair use" portion of copyright law. Obviously, needlework patterns are meant to be used to create the needleworker's own piece from a design that originated with someone else. I spoke of muddy waters before, and this is where they begin. Fair use depends upon the purpose and character of the use of the work, the nature of the work, the amount and substantiality of the portion used in relation to the work as a whole, and the effect of the use upon the potential market for or value of the work. The government acknowledges the difference between fair use and infringement may be unclear. It recommends when in doubt, get the copyright owner's permission before using copyrighted work for a use you may question.
How does this apply to us as needleworkers? In a number of ways.
First, let's suppose you create an original chart that contains nothing ever published before. If someone takes it after you've created it and claims it for their own, (s)he is infringing upon your copyright. According to my reading, this applies equally to published and unpublished designs. That's the easy part. ;-)
Can you stitch a piece from a published chart and sell it? There are designers who say this is copyright infringement and is outside the scope of fair use because you will be profiting from their work, while others disagree. I have no definitive answer to this question.
Can you take portions of copyrighted charts to create your own? After all, the designers of some work, for example, obviously intend it to be used in other work. I'm referring here to things like alphabets and borders meant to be used in samplers. Again, I have no answer except to say the best bet is to get the permission of the copyright holder before you publish.
Suppose you want to take a picture from a magazine, book, or other item, and make a chart from it. Does this infringe on copyright? It does if the picture is copyrighted and not in the public domain. Although you are altering the technique used for the item, you are still using it. You may need to have copyright research done before you make your own copy of a work, even in a different form. If the work is indeed copyrighted (magazines are), you'll need to get permission.
What if you wish to chart a poem or saying? As with the things I mentioned before, the safest thing to do is to get permission from the copyright holder. The government does NOT set limits on the number of lines or amount of a work that can be used without permission.
Now, we come to the part of this discussion we see online and otherwise most often. Can you trade, copy, or sell patterns you've purchased, whether in magazines, in leaflet, or in book form? This is a truly difficult question, and there are many opinions about it.
What about copying a pattern for whatever reason. Designers seem to be divided on this issue, depending in part upon for what reason the chart is being copied. If you make a copy for personal use so you don't tatter the chart while using it, some designers say that's okay. I have a Leisure Arts book (color charts) containing a statement that one color copy can be made for the stitcher's own use. This statement is no doubt for places that make color copies letting them know the stitcher has persmission. Some of these places are real sticklers. You are making a copy of a free chart when you find it on the Internet and print it. In this case, the copyright holder has elected to make it a freebie, but often, the chart is accompanied by a statement saying you may copy but not kit or sell. Some designers believe it's okay to make copies for personal use only, while others say the opposite. I know of two designers who will replace your tattered charts from them free of charge if you send the used chart back.
While we're on the subject of copying, is it permissible to copy the chart to give to someone else? The question to ask yourself here is whether it would be affecting the copyright holder's livelihood if you do so? Suppose I copy a chart to send to someone because I have it and (s)he can't find it. This is an infringement of copyright because the recipient of the copy is taking away from the designer's ability to make a living by not purchasing the chart at its face value. This is a pretty clear-cut no-no, whether the chart is still in print or not. Remember, copyright exists through the life of the holder plus 75 years. Much as we may not like it, the fact that a pattern is not in print any more has absolutely no bearing on whether it may be copied. It's still copyrighted.
Can you sell a chart to someone else? After all, you paid for it. Again, opinions vary on this subject. I would have no qualms about offering to purchase a chart to send to someone who can't find it and having them reimburse me for the cost, but I'm not going to use the chart before I send it on to that person. The copyright holder is still getting benefit of the sale of one chart to one person. I would question the ethics of my purchasing a chart, using it, and then selling it to someone else. If this happens, two of us are benefitting from one chart, and the copyright holder is losing the fair market value of one chart. Plus, the money is going into my pocket.
What about trading charts? Another muddy area. I may be comfortable trading a chart I haven't used for one the stitcher on the receiving end of mine hasn't used. Otherwise, the copyright holder is again losing the price of a chart because two people used it and only one bought it.
A question arose last week about whether one can stitch several pieces from the same chart. This creates a large difference of opinion. One school says if the stitcher purchased the chart, multiple needlework pieces can be stitched from it. The other side says if one stitches a project several times, a new chart should be purchased for each project. Again, I have no definitive answer for this question.
Yet another issue we discussed was whether one can sell the completed needlework to someone else. I have heard from designers who say this is all right; however, others tell me it is an absolute infringement of copyright because the work is a copy in another form than that on paper. Can we give as gifts items stitched from patterns? Still more opinions, both pro and con.
Some chatters wondered if they changed colors in a chart, did that make the copyrighted work theirs instead of the copyright holder's. I would tend to say no. If you look back at the beginning of this article, the copyright holder has the right to determine whether derivative works from their originals can be used. Changing the colors in a design isn't enough to make the needlework not belong to the copyright holder. For example, I have designed 3 projects for Class Act Chat. All are freebies, and I encourage stitchers to select colors of their own choosing. If someone does so, I still have the rights given me by the Copyright Act to the chart. As with written material like books, poems, etc., I have the feeling that the proportion of the pattern that is altered is not specified in law and cannot be determined except in court.
There were quite a few questions about entering another person's design in a competition or show. I've noticed most shows have a category for original work, in addition to categories for other works. For example, the National Cross Stitch Show, which will be held at Rockome Gardens in Illinois in June, has all kinds of categories. Two of them are for Teresa Wentzler's designs and Lavender and Lace designs. There is another separate category, among others, for original works. I am not positive a piece shown in competition, so long as it meets the guidelines of its category, is a violation of the copyright law because in all my experience, I have had to indicate who was the designer and what is the name of the design. Where I'd think we could run into trouble is to enter a design of someone else's in an original design class because we'd be claiming we designed it.
Chatters also wondered about purchasing a chart to give another needleworker as a gift. If you go with the principle that only one stitcher should stitch from one graph, then you'll believe this is all right.
I realize this article may have confused you even more on the issues of copyright. It is obviously impossible to enforce the copyright law except in major circumstances. I suggest this is a matter of conscience for all of us. As I have begun to do my own little charts and have made them available to you on my website, I understand even more how protective designers are of their work. Several people have approached me about using my charts for classes, etc. I have always given permission because they are freebies and they're there for people to learn. I do appreciate the requests to use them, though. Certainly, I would have a problem were I to find that others have asked for payment for copies of the charts or have kitted and sold them. IMHO, we need to support the designers who give us such wonderful things to stitch. That's how they make a living, and if they can't do so, there won't be as many terrific designs out there.
Copyright 1998 Jill Martz
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