Sticks, Strings & Other Things

Friday, January 27, 2006

Well. I've had quite a day! After the discussion and questions regarding copyright laws we had at Knitting Group the other night I've been on and offline since the wee hours researching knitting and copyright laws. I have compiled a bunch of info here and I hope it helps answer any questions.

IMPORTANT DISCLAIMER NOTICE THING: I AM NOT A LAWYER! (Well, duh!) I will NOT come and bail you out of jail for copyright violations and "Jo said so" will NOT be a sufficient defense to get you off in court. I'm just a dedicated researcher who is trying to apply some basic common sense to a really thorny area of legal mumbo-jumbo.

This information is gathered from a number of sources including government websites, attorneys who deal with copyright law, knitting books and magazines, professional designers and professional knitters. I have carefully sifted through mountains of (often conflicting) information, dug up things I had tucked away on my own harddrive and tried to make it as simple as I can.

For those who weren't in attendance at Knitting Group the other night here's a simple and quick overview of what we were discussing. It basically breaks down to four questions:

1. Can you knit an item from a copyrighted pattern in a book/pamphlet/calendar/online source or wherever and sell it without infringing on the copyright? This refers to items designed by anyone other than yourself.

2. Can you knit an item from a copyrighted pattern from the same source(s) as above and donate it to a non-profit organization for them to sell without infringing on the copyright?

3. Can you take a copyrighted pattern from the same source(s) as above and alter it a certain as yet undetermined percentage, call it "yours" and then knit and sell the item without infringing on the copyright?

4. What exactly can be or is protected by copyright? The entire pattern, a technique, a stitch pattern, how the pattern is written or the items made from using the pattern?

OK. Here goes. In order:

Q1. Can you knit an item from a copyrighted pattern in a book/pamphlet/calendar/online source or wherever and sell it without having infringed on the copyright? This refers to items designed by anyone other than yourself.

A1. Probably not. The phrase "all rights reserved" and/or that funky lil copyright symbol on a pattern are powerful, don't mess with either one. The copyright protects the copyright holder from ANYONE "unduly" profiting from their work without their permission. "All rights reserved" means exactly that, ALL rights including the rights to the item itself. Generally the funky lil copyright symbol means just the pattern as it is written but we can't be sure so we shouldn't risk it, IMHO. You can apply to the copyright holder for permission and depending on the designer some may grant it for a fee. It's doubtful but you never know. So, to knit an item that someone else designed and then sell that item for profit without their permission is most likely a violation of the copyright. If a pattern doesn't say you MAY knit it to sell or use it anyway you want to the law will generally stand firmly on the side of the copyright holder in the greatest majority of cases. One would assume that if you wanted to knit it and sell it at a loss it would be OK but I wouldn't recommend this either. >g<

Q2. Can you knit an item from a copyrighted pattern from the same source(s) as above and donate it to a non-profit organization for them to sell without infringing on the copyright?

A2. Maybe. This area is far more gray. Basically, the law says that noone can "profit unduly" from another's work if that work is protected by copyright. For the sake of discussion...If YOU buy the materials and YOU knit the item and donate it YOU have not profited so YOU might be in the clear. I say "might" because we can't be sure how the court would decide this. You might also be liable however, if you KNOW the item will be sold or if you take a tax deduction for donated goods on your income taxes. The non-profit organization that sells the item COULD BE in violation IF it is determined that they profited "unduly". That is where it gets really murky because who is going to determine how to define "unduly"? The argument could be made that the sale fee that the non-profit sets on a donated hand-knit item will probably not cover the cost of materials (that they didn't even purchase anyway) and the knitter's time wouldn't even be factored in because, after all, that was donated so the "profit" probably wouldn't be considered "undue" BUT, we just can't be sure so again, it is best to contact the holder of the copyright for permission even in cases of non-profit.

Q3. Can you take a copyrighted pattern from the same source(s) as above and alter it a certain (as yet undetermined) percentage, call it "yours" and then knit and sell the item without having infringed on the copyright?

A3. No. This falls under "derivative works" and is another protection built into copyrights that protects copyright holders' original material. There are many suppositions around that state that if you change something "x" % it no longer can be considered derivative but apparently this just leads to more murk because again, who is going to agree on how to define "x". You CAN take a pattern, three patterns or seventeen patterns for that matter, and use them as a jumping off place and develop your own pattern. Ideas can not be copyrighted. Taking an idea and developing your own way to do it isn't an infringment. As long as you really are working on developing a new pattern for an old item, you're ok.

For example: "SuzieQ"* gave me a pattern for the fingerless mitten things (seen below in a previous blog). She knew I was exploring making fingerless mittens and gloves and thoughtfully brought me a pattern she had used in the past. I took that pattern and knit one up as I had three or four or seven other similar patterns. I didn't like any of them for many reasons...most were too short on the wrist (so I made that part longer), some were too tight or too loose in the wrist and hand (so I added or subtracted stitches in both places), I didn't like the ribbing patterns (so I went with a rib I prefer), the thumb gussets weren't long enough on any of them, some didn't even have thumb gussets (so I made long thumb gussets on mine), the tops of the hands weren't sturdy enough for long term wear (so I made a longer rib on top in the rib pattern I prefer) and finally, I chose my own needles and yarn types and gave them my own touch color-wise by adding black bands at the top and bottom. People who are familiar with my knitting over the long term know that adding black is a "signature" of mine. I'm crazy about the way it makes colors POP and how it helps items that will get a lot of wear and/or use stay cleaner longer. THEN I wrote a pattern to take all of these changes into account using my own notes as reminders for what I'd changed, how many stitches I'd used, increases and decreases and the needles and yarn I used. This is development. So, have I infringed on a copyright? *I* don't think so but I suppose a court could possibly see it differently. Do I think I'm in any danger of being sued? No... but if I am I expect every single one of you to come to court with me. :)

Q4. What exactly can be or is protected by copyright? The entire pattern, a technique, a stitch pattern, how the pattern is written or the items made from using the pattern?

A4. The entire pattern as it is written AND MOST LIKELY the item(s) made using the pattern are protected by copyright. The knitting techniques and the stitch patterns are not copyrighted UNLESS it can be proven that they are brand new techniques and/or stitch patterns. Just putting together technique A with stitch patterns B & C do NOT make them new however if you put technique A with pattern stitches B & C AND develop a pattern from them your pattern can be copyrighted if IT is new. Knitting has been around since forever minus a decade and there are probably not any new techniques or stitch patterns out there however the law does allow for the possibility so if you think you've invented one, do your research and if you're still convinced you've invented something new you can publish it and copyright it. Good luck. ;P

Now, that said...there are lots of patterns out there for basic knitted items such as socks, scarves, washcloths and even basic plain sweaters. So let's say for sake of argument that you knit a bunch of washcloths out of your head using the basic and universal YO increase and k2TOG decrease. You knit them 'til they look big enough to you and you go off and sell them to all the moms at the soccer game or wherever. Let's say that you stopped your increasing when there were 52 stitches and started your decreases. Is someone who has a copyrighted pattern that uses the same basic techniques for increasing and decreasing and stops increasing at 52 stitches to begin the decreasing going to send Lawyer Jones to sue you? >shrug< Maybe. Will they have a case? Again, maybe. YOU will have to prove that you did not infringe on their copyright possibly by proving you don't have their pattern, never saw their pattern and indeed, never knew their pattern exsisted among other factors. Let's also say that you wrote down YOUR pattern and you produce it to prove it's yours. Should your pattern oddly enough, have the exact same phrasing and style of pattern writing as theirs (yes, Virginia, there ARE styles of pattern writing) ...they may win their case. Even if your pattern is written completely differently from their pattern you could lose your case because the end product is identical. Most likely NOT with washcloths or other "basic" items but you see my point, right? It depends on the judge, it depends on how good your lawyer is with copyright law, it could depend on if the judge's granny used to knit washcloths *just like* yours/theirs...who knows what it could depend on? Only the judge. If you can prove development, you may win. But then again, you may not. Sound silly? Welcome to US Copyright Law 101...we never said it would make sense, it just is what it is and like all US Law is open to interpretation by the fine judges on the benches.

>phew<>

In a nutshell...don't knit from patterns and sell the items knitted without permission from the copyright holder unless you *like* living on the edge and would be happy to potentially challenge the law. C'mon...sing it with me...~~o"...I fought the law and the law won..."o~~.

Don't knit from patterns and donate items to be sold even to non-profit organizations without permission from the copyright holder. Most copyright holders can be found online and it's a simple thing to get an address and write a nice asking-for-permission letter for non-profit situations.

(If you are affiliated with a non-profit and are on a commitee which might be offered hand knit items to sell don't sell the items without permission from the copyright holder OR without talking to an attorney who is well versed in copyright law first. That's just my recommendation cuz again I AM NOT A LAWYER, I'm just trying to use common sense in relation to the info I have gathered and the advice I have been given.)

Don't take copyright protected patterns and divide them by 12, multiply that number by .0036547676 to the 4th power then subtract the square root of an oak tree and call it the "correct" percentage to determine you aren't infringing on a copyright.

My advice? Learn all you can about basic knitting, how and why techniques work, play with stitch patterns, experiment with yarn and needles and color, color, color and start to develop your own patterns, get your own copyrights and then sell what you make. It's so much more fun that way, too! All of this is, of course, built on the supposition that the very instant you try to copy, sell or donate something knit from a copyrighted pattern that someone is going to jump out of the woodwork and slap you with an order to appear in court. YOU have to decide how likely this is and act accordingly in such a manner that you can live with your own conscience.

You will notice I did NOT talk about copying patterns to share with friends/relatives/complete strangers/knitting group members or your sister's best-friend's veterinarian's secretary's mother-in-law's church group. That's a whole 'nother ball of yarn and IMHO...we all have to decide if we can live with this one for ourselves. We know it's wrong, end of discussion. 0;)

I WILL recommend you NEVER, EVER copy and then SELL OPPs! (OtherPeople'sPatterns)

*names have been changed to protect the (notso) innocent ;)

5 Comments:

  • At January 27, 2006 9:25 PM, Anonymous jessie said…

    Okay, Jo, first, I'm so pleased to see someone who writes a longer post than me!

    Second, I just wanted you to know I've added you to Bloglines so I'll be able to read your blog whenever you update. See, that's another reason I'm glad I had a haiku contest; I probably wouldn't have found, and some other people, you otherwise.

    And we're practically neighbors, in a larger geographical sense. My stepson goes to school in Laconia. Based on your hobbies I sense you may have been there before?

     
  • At January 30, 2006 4:45 PM, Blogger Jo said…

    Hi Jessie! Welcome to my blog and I'm flattered you've added me! Your haiku contest was fun and I'm glad I found it so I could par-tic-i-PATE. I am rather verbose, huh >rollingeyes< It must be the Irish in me. >g<

    We are neighbors of a sort and I know Laconia well. It's one of our favorite places to cruise on the bike. There is a nice knitting store downtown should you ever get up that way.

    Happy reading!

     
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