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"Take not from others to such an extent and in such a manner that you would be resentful if they so took from you."
Joseph McDonald's copyright paraphrase of the Golden Rule, quoted by the U.S. Supreme Court, 471 U.S. 551 (1985)
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Copyright: Answers to Quilter's Questions
Part 1
By Janet Jo Smith
Did you know that U.S. copyright law applies to making a quilt? Whether your style is traditional, or you design unique quilts, there are legal issues involved in making, selling, publishing, and exhibiting quilts. If you take a class, purchase a pattern or book, or help choose the guild's raffle quilt design, you need to understand the law.
We have attempted here to answer some questions frequently asked by quilters regarding the application of this law. But first, let's review the general principles.
A copyright exists as soon as an original design is made into a quilt. Ideas alone cannot be copyrighted, nor can techniques. Copyright law is meant to protect the design of an existing work. The following criteria must occur before a copyright applies.
Originality–it must spring from your own creativity, your original design.
Fixed in tangible medium–it must exist in physical form, not just an idea or sketch.
Fall within the Copyright Act–although no cases have been recorded in the case law involving quilts, embroidery works and fabric designs have been accorded protection under the Act.
Registration is not required to create copyrights. Reasons for registering a copyright will be discussed later in this series.
So what does all this mean in real life? We have used 'Suzie Sunbonnet', and the original quilt of teacher 'Crazy Ann', to illustrate the application of these legal principles.
Suzie Sunbonnet just learned to quilt. She took a class with Crazy Ann, and liked Ann's class sample so much, she made one just like it. Then Suzie read in her favorite quilt magazine, QN, that making a copy of someone else's quilt may violate the law. Suzie is now in a quandary about what she can do.
Was it okay that Suzie made a copy of the class sample in Ann's class?
Yes. When a teacher makes a sample and offers a class, she implies her permission for students to make a copy of her quilt. This permission is limited to students who pay for and attend the class, or pay for and receive the instructions.
Can Suzie's sister make a copy of Suzie's quilt?
No. Suzie's sister did not take the class and has not compensated Ann for the use of the design. Without Ann's permission, it would infringe on her copyright for anyone who did not take the class to copy the design, whether it was taken from the original quilt or from Suzie's copy.
Can Suzie sell her quilt?
Not without Ann's permission. A copyright is personal property. It can be transferred just like any other personal item. You can give it, sell it, bequeath it, or license it to whomever you please, but you cannot make a profit from someone else's work without their consent. (Note: Copyright consents are called licenses and should usually be in writing.)
Can Suzie give the quilt to her daughter for her birthday?
If Suzie's daughter will display the quilt in her own home, for personal use only, it is okay. If Suzie's daughter wants to publicly display the quilt, sell it, or copy it, she should ask for Ann's permission.
Can Suzie make ten copies of Ann's quilt and give them away?
When Ann taught her class, she expected that students would make a copy of her quilt. However, she would not reasonably anticipate a student would make multiple copies and saturate what might be Ann's market–other potential students. The implied consent to copy extended to only one class quilt. Suzie's action also violates Ann's exclusive right to distribute her work.
What if Suzie changes the colors and rearranges the blocks in the quilt, can she then make copies for sale?
A change of color scheme does not make the quilt original enough to take it out of Ann's copyright. Variations are the most difficult issue in the area of copyright. Whether changes are great enough to produce an original quilt, not infringing on another artist's design, is a question of fact to be decided case by case. The criteria for this determination is whether the work differs substantially from the original. Another test is to ask, would someone else looking at this quilt think it had been made by Ann?
Suzie's copies would probably be considered derivative works. Derivative works are quilts that share a similar element or theme, and one work derives from the other. Only Ann can make derivatives of her designs.
Can Suzie enter the quilt in the local guild show or in Quilt National?
The right to publicly display work belongs to the copyright holder. However, a local exhibition of quilts usually has a limited number of people attending, and would not be considered an actionable violation, one which the court would consider. Entering a show that has worldwide coverage, or that publishes photos of its exhibit in a catalog, would be a definite no-no. Quilt National, Visions, the American Quilter's Society Show in Paducah, or the International Quilt Festival in Houston would all be examples of such shows.
An editor from a famous quilt magazine saw Suzie's quilt at the local exhibit and would like to use it in a feature article. Can Suzie give permission for the magazine to photograph the quilt? To publish the photograph?
A photograph of Ann's design is also a copy. Copies made in any medium–photographs, paintings or drawings–generally cannot be made without the permission of the copyright holder. Suzie cannot give this permission for photography (copying) or publication (copying, distribution and display). All of these rights are exclusive to Ann. The Fair Use exception to copyright does allow periodicals to publish copyrighted work for news or commentary. (This will be discussed in more detail in part two of this series.)
Can Suzie accept the $200 prize money her quilt wins at the local show?
Definitely not, if she did not get Ann's permission to enter and display the quilt. If she had permission, it would be common courtesy to share the prize with Ann, since without Ann's class Suzie would not have been inspired to make the quilt. To accept the prize money would be to profit from Ann's protected work.
What if Suzie had taken the design for her quilt from a pattern published in a magazine or book?
As long as Suzie purchased the magazine or book, she is free to use the pattern to make a quilt. Publication of pattern instructions implies consent for a purchaser to make a copy for personal use. However, all of the restrictions which applied to Suzie's class quilt apply to published material in a book or pattern.
This series of articles is for your general information. Although Janet Jo is a licensed attorney as well as an editor, QN cannot give legal advice. If you have general questions about copyright or related Issues, write and let us know. We will try to find the answers and publish them. For specific, personal questions, consult with an attorney who specializes in Patent, Trademark and Copyright law.
Future articles will address the exceptions to copyrights and other related topics.
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