As in so many areas, the Internet and rise of blogging has completely revolutionized crafting and home sewing (remember Andy’s cake topper things?) It has allowed a huge number of small businesses and private individuals to connect and come together to create a resurgence of interest in it.
One of the things that always annoyed me, though, was the venom that comes out over “copying” and “stealing,” along with incredible assertions of rights over sewing patterns in cases where the stakes are tiny. This is a weird topic for copyright, though, because they’re different types of things than what we usually talk about in copyright and fair use. Intrigued, and annoyed by the pseudo-legalese on websites from people who sell baby bonnets, I decided to investigate. I doubt my findings are comprehensive, but I’ve found it to be illuminating on an area where there is no scholarship.
So, it’s an established fact that clothing isn’t copyrightable, despite some efforts from within the industry to change that. Not only is it not legally protected, but blatant copying is an incredibly important part of the fashion industry. (If you’re interested in this, Joanna Blakely has a great TED talk on fashion’s free culture.)
The lack of protection for clothing has been upheld several times in the courts, and the working precedent now seems to be that a part of a garment may be copyrightable if there are “pictorial, graphic or sculptural elements of the costumes were independently copyrightable.” (Whimsicality, Inc. v. Rubie’s Costume Co., Inc., 891 F. 2d 452) In order for these elements to be independently copyrightable, they must be seperable from the garment’s useful nature if “there is substantial likelihood that even if the article had no utilitarian use it would still be marketable to some significant segment of the community simply because of its aesthetic qualities.” (NIMMER ON COPYRIGHT § 2.08[B] quoted in Galiano v. Harrah’s Operating Co., Inc., 416 F. 3d 411)
There’s a significant movement in both the design and law worlds to try to change this and bring protection to designs in the US, as they’ve tried to do elsewhere, but this hasn’t been successful yet.
This all applies to the final product, though. What about the protections for patterns themselves? Just looking around the online sewing community, you’d think that they’re every bit as copyrightable as novels or songs. The Uniform Project sells finished dresses, kits, and a dress pattern that presents you with this EULA just before purchase:
“I acknowledge that the designs and patterns (the “Dress Patterns”) offered for sale on this website are protected by copyright, trademark and other intellectual property rights controlled by Uniform Project. I agree that I may use the Dress Patterns only for personal, non-commercial purposes. For the purpose of clarity, I shall not use any item of clothing created through use of the Dress Patterns (the “Dress”) in any commercial advertising, film, television, print or online media, nor shall any Dress be sold to third parties without the prior written consent of Uniform Project. For the avoidance of doubt, no prior written consent shall be required to post photos or videos of any Dress on a non-commercial website.”
The creator is claiming copyright and trademark rights, as well as “other intellectual property rights.” I’m not sure what these other rights are, but the trademark claim seems valid. We’ll get to copyright later.
The rest of this, with the amazingly specific stipulations about where one can wear the actual garment, seems like it would make it almost impossible to wear the dress at all in modern society without breaking the license agreement. If I have a personal blog that has ads on it, is it a commercial website? If I give a talk while wearing the dress, and people put up photos or video, do I know that they’re only going to surface on non-commercial websites? If I get tired of the dress, can I sell it or donate it to Goodwill? From the language here, it seems to me like all of those scenarios would constitute infringement, like singing “Happy Birthday” in a restaurant.
Many of the articles and FAQs regarding copyrights posted in the online sewing community also carry a strong element of scolding, because “real” artisans create work from scratch. In an article on “Copyrights and the Sewing Industry,” the author begins by saying that “A major part of the joy of sewing is creating something new and different.” I agree with this sentiment out of context, but the implication is that building off of somebody else’s pattern is not creating something “new and different,” even though you have created the actual item from scratch.
Also, a large problem in apparel sewing that doesn’t plague novels or music is that there are only so many ways to cover the human body, especially within the context of the modern wardrobe. The patterns that the author of this article offers are extremely generic in concept and execution:
I in no way argue against the author’s right to sell this pattern or the quality of it, but to defend this sort of garment as something “new and different,” and assumedly not based on anything else, is laughable.
Similarly, according to a pamphlet prepared by The Sewing Academy (.PDF on linked page, right-clicking irritatingly disabled), no amount of change can make an altered pattern into a new work. If you, as a creator, at any point use another person’s work, your work is infringing. All of these licenses and guidelines also ignore the first sale doctrine, and do not allow you full use an individual, lawfully purchased object.
Despite all the potential argument over the assertions in these EULAs and pamphlets for sewists, the biggest one is that case history seems to suggest that sewing patterns aren’t copyrightable anyway. There haven’t been many legal cases on this subject because it’s a small community and there isn’t a lot of money at stake. In the cases I did find, however, there is no indication that sewing patterns are automatically afforded any protections under the law. A brief run-down of relevant cases:
- Baker v. Selden, 101 US 99 (1879) specifically refers to an earlier case which claimed copyright for patterns: “Their practical use could only be exemplified in cloth on the tailor’s board and under his shears — in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms. Surely the exclusive right to this practical use was not reserved to the publisher by his copyright of the chart.”
- Excella Pattern Co. v. McCall Co., 5 F. 2d 61 (1925) ruled that a method for conveying information on paper pattern pieces –still the standard method—was not eligible for a patent.
- The Beverly Hills Design Studio (N.Y.) Inc. and Stevi Brooks v. James Morris, 88 Civ. 5886 (1989) (Available on Lexis) specifically ruled that apparel patterns were not copyrightable and that a competitor using those patterns to create their own garments was not guilty of infringement: “Such a useful article is not eligible for copyright protection unless it has artistic features which are independent of its utilitarian aspects, and here there were none.”
- Yankee Candle Co. v. Bridgewater Candle Co, 259 F.3d 25 (1st Cir. 2001) says, “When there is essentially only one way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression.” I would argue that there aren’t multiple ways to express the shapes needed to cover the human body, barring something novel enough to merit a patent, and thus copyright shouldn’t apply.
Furthermore, in looking through the copyright registry, the largest commercial pattern companies in the U.S. do not hold any copyrights for actual paper patterns. The many copyrights they do hold are all for product packaging or obviously pictorial things like iron-on transfers.
From all of this, it looks to me like any protection that patterns have, from use, redistribution, and commercial application, would have to come from the licenses that are applied or implied at sale. The legality of these licenses is another thing entirely, and case history hasn’t been entirely clear on the enforceability of “shrink-wrap” and “click through” licenses. I will say that with the pattern companies I discussed here, the license agreements are not visible until after you have entered payment information (with no “I agree” button) or actually purchased and opened the product. The use of or failure to return the item could be considered agreement, but that’s tenuous, as well.
What we have here, I think, is the convergence of modern technology with a profoundly traditional craft, and the copyright bullying that happens in a relatively small, low-information community. The ethos of the copyright industries, where everything that isn’t controlled is “pirated,” has bled into a domain where it has no bearing, to the detriment of everyone involved.