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"The Congress shall have power...to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
United States Constitution, Article 1, Section 8
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Copyright: Answers to Quilter's Questions
Part 2
By Janet Jo Smith
Part one of our series on copyright law addressed what copyright is and how it may arise in the life of the average quilter. Knowing how readily the rights attach, and how broadly they apply, you may be wondering how anyone ever makes, publishes, or exhibits anything. The law is never absolute. For every rule, there are exceptions, and this is certainly true of copyright statutes.
The general rule is that you cannot copy the original work of another in any medium without her consent. The exceptions to the law allow us to apply common sense to the rule. Within the copyright statutes are exemptions called "Fair Use." Within these narrowly interpreted exceptions, copies of protected materials may be made for teaching, scholarly research, news reporting, and commentary or criticism by the media. And, after certain time periods, the copyright expires and the work becomes public domain. This article explains these exceptions, and other relevant issues, with the aid of LeMoyne Starr, Rambling Rose, and Sunshine N. Shadows.
LeMoyne Starr is an art quilter–a fiber artist. She creates original-design quilts for exhibition in art galleries and for sale. Two of her quilts are currently hanging in a show with works by 20 other fiber artists. She has placed the copyright symbol on her quilt labels, and it appears on the informational signs the gallery placed next to her quilts.
Rambling Rose of the Hometown Post newspaper has been assigned to report on the exhibition of the famous LeMoyne Starr. She writes a lengthy article about LeMoyne and the show, and has the newspaper's photographer shoot pictures of LeMoyne's quilts. These are published along with the article.
Has Rose, or the Hometown Post, violated LeMoyne's copyrights by publishing a photo of her quilt? Can the Post's art critic publish a review with photos?
Rose's news story, the art critic's review, and the photos fall within the Fair Use exceptions for news and commentary. The factors considered to determine if publication of a copy is within fair use include: whether the original is printed full size; whether the artist is given credit for the work and product information provided; and, whether the copy adversely affects the artist's potential market, or commercial value, for the work. Will the copy replace, or reduce the demand for, the original? The Post is within the exceptions for Fair Use.
Rose wants to publish a pattern for one of LeMoyne's quilts in the Hometown Post. Can she sketch the designs and publish instructions?
Only with LeMoyne's permission. Fair Use does not allow copying (sketching), or publishing pattern instructions. The distinction between this, and news and commentary, is that the pattern impairs LeMoyne's potential to publish her own pattern and profit from it. News and commentary usually would not have a negative effect on the commercial value of LeMoyne's designs.
LeMoyne's quilts are published in a catalog of this show. Sunshine N. Shadows (Sunny), a high school teacher, makes photocopies of the catalog to hand out to her students of art history. Is this okay?
Fair Use includes teaching, scholarship, and research. But this is limited to non-profit schools and universities. Since Sunny is a public school teacher, multiple copies of protected work may be made as an aid to teaching her class. The class may also make copies in the course of doing class research. The teaching exception does not include a quilter teaching for pay.
Can Sunny make copies and hand them out to her quilt guild during a technique demonstration?
No. The teaching and scholarship exception is narrowly applied to primary and secondary schools and universities. Teaching outside of these institutions generally does not fall within the exception. Again the reasoning is that the law is meant to protect the commercial value of LeMoyne's work, balanced against the importance of public education. For the demonstration, Sunny's guild members should buy the catalog.
The catalog of the show has sold out. Sunny borrows a catalog and gives it to the school library to copy for its collection. Does this violate LeMoyne's rights? The rights of the publisher of the catalog?
Libraries and archives have a special exception to copyright. They may make one copy of a protected work if the library is open to the public or persons researching in a particular field, and if they have no commercial purpose in the copying, and if the copy includes notice of the original copyright. When copying written material, a related consideration is that the catalog is no longer in print, and copies are unavailable for purchase. Copying for non-commercial use is generally permitted in this situation.
Sunny made copies for her guild of a quilt and pattern from a book published in 1875. Does this violate any copyrights?
Through the passage of time, the book and the pattern are "in the public domain." Copyrights are time limited, much like the statutes of limitations in other areas of law. Copyrights in existence before 1978 have a life of 28 years, and are eligible for a 47-year extension, for a total protection time of 75 years. In 1978 the law changed, and the copyright is effective for the life of the artist or author plus 50 years. The book and pattern are well out of the 75 year limit. They are in the public domain, and may be freely used by anyone.
As editor of her guild's newsletter. Sunny would like to reprint the article Rose is writing for the Post. Can she do that?
Only with the Post's consent to use the text, and LeMoyne's consent if Sunny wants to reproduce photos of the quilts. Most periodicals have a policy about what copying they will allow. QNM will grant permission for portions of the magazine to be copied, in limited numbers, when requested for non-profit use by guilds. Always ask permission in writing from the periodical or publisher whose work you wish to use, and wait for the written response.
LeMoyne's art quilt group has issued a challenge to make a quilt in the style of the French impressionists. Can LeMoyne make a quilt inspired by a Monet painting using the watercolor quilt technique?
Even if Monet's work was recent enough to be protected by copyright, LeMoyne could make a quilt inspired by his work or style. The watercolor quilt technique is one that can capture the feeling of the impressionist painters without copying their work. This is a permissible use of another's work since the result will be substantially different from the original.
It is also permissible for LeMoyne to use the watercolor technique developed by another quilter. This use of patches of large print fabric that blend into one another to create a style is fine if the quilt is not a copy. Technique or style is not protected under the Copyright Act.
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.
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