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♥ The (Non-) Copyright Issue ♥


First off, let me say that even the experts admit that copyright is a VERY confusing topic, with a large gray area.

Before deciding to flame me for my conclusions, be sure you have read the entire page AND THE LINKS. And it may take more research than that to GRASP the issue.

Having spent a fair amount of time at the US Copyright website and in general research, I feel prepared to proceed.

There are many misconceptions about copyright laws, including the common opinion that, "if you didn't create it or pay for it, your use is illegal."

I can understand how many companies and individuals, because of the large gray area referred to above, have opted for this method of dealing with copyright laws. Such ideas are scared into us by the "policies" of companies such as this one (which have no legal basis, as we will see later.)

However, this is NOT THE LAW. This is the opinion of people and companies trying to cover their tooshies in the event that someone, sometime comes after them with a law suit... and they would rather be safe than sorry. Or someone trying to protect their revenue. Again, I state THIS IS NOT LAW, it is an OPINION.
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This next part is an overview of some relevant copyright laws, to see those specifically relating to patterns, scroll down to "Patterns." 
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So what does the LAW say about using things that are under copyright?  It is VAGUE at best (see this article @about). I will attempt to show black lines where they can be found.

The simple (though still complicated) answer:  Works that have passed out of copyright. This is the simple answer because you can freely use anything that has passed out of copyright, complicated because you have to get your calculator out to figure out which ones are NOT out of copyright. More gray lines. See here for a page where a very kind person did the math for you!

The super simple answer: if it was published after 1964, it is still under copyright.

But that doesn't mean you can't use it! (Is anyone else irritated at our bureaucrats yet?)

Enter the "FAIR USE" clause

Fair use."is use that is necessary for the furtherance of knowledge, literature, and the arts AND does not deprive the creator of the work of an appropriately expected economic reward."

Documents used in an educational, archival, non-profit context  are an exception to the copyright rule REGARDLESS OF THE COPYRIGHT DATE. (please note that this exception has exceptions of its own, see above link)


Copyright law comes down to the INTENTION OF THE PERSON using the copyright. In fact, there is a law to protect those who believe that they are using it correctly, but aren't.

US Copyright Notice Office:
"four factors to be considered in determining whether or not a particular use is fair:
    1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
    2. The nature of the copyrighted work
    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    4. The effect of the use upon the potential market for, or value of, the copyrighted work" (emphasis is mine)
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Patterns

As far as the legality of copying patterns, see this article from Tabber's Temptations filled with references and citations:

"A quick check of copyright records does not reveal any copyrights registered with the U.S. Copyright Office for clothing patterns by Simplicity, Butterick, or others. Paragon Patterns has no copyrights but on the web site for Paragon Patterns (http://www.paragonpatterns.com/CompanyPolicies.html) they claim all of their patterns are copyrighted. There are a lot of "patterns" copyrights and many are fabric patterns. Why are not these companies registering their clothing patterns? We think because they cannot. We think that is because the copyright office won't accept a registration of copyright on the general patterns for clothing, i.e., those lacking "creativity". Simplicity has copyrights on the pattern envelopes, but not the patterns.

"Clothing designs, which are aesthetic creations also have the purpose of keeping the body warm and thereby serves a functional purpose. In a copyright context apparel is regarded as a "useful article", and as such receives no protection under copyright law. While the pattern itself isn't copyrightable, and there is no question about that because it is a useful item, the product made from that pattern certainly is not. Useful items, such as clothing, cannot be copyrighted. A unique design embedded within the clothing article might qualify for a copyright but there are conditions attached, and, the design would have to be copyrighted apart from the pattern. The sewing pattern is a set of instructions for making a utilitarian object. While the way those instructions are expressed is copyrightable, the pattern and the finished item are utilitarian and not subject to copyright." (from tabberone website)

Contrary to common thought, the IMAGE on the FRONT of the pattern MAY BE COPYRIGHTED. The actual pattern CANNOT be copyrighted. Although a PHOTOGRAPH of the product is not infringement according to this.

Doubtful? See an actual letter from the copyright office DENYING a copyright to a pattern company. Here is an excerpt from that letter:
And here is the result of a court case on the copyright dispute of clothing in a store.


That being said why do we not just put ANY PATTERNS WE WANT TO ONLINE? Well, I don't want to hire a lawyer to deal with the lawsuit that would come from the pattern companies if I suddenly started putting, say, current Simplicity patterns for free online. Would they win? I don't think so, but they would threaten and maybe even sue in an effort to protect their own interest, gambling that I would not be informed and would not call their bluff.

But out-of-print and vintage patterns?
Fair game as far as I am concerned.

I think the facts speak for themselves.

Disagree with me? That is your prerogative. I am open to informed and intelligent debate on the issue. 

BUT...
Make sure you do your homework first.
because I have done mine. 

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Additional Links:
Copyrights Explained
Copyrights and Intellectual Property
Fraudulent Claims of Copyright
 

7 comments:

Summer Rivito said...

This information has been very useful. I inherited a sewing machine and was wondering if I made clothes and had used patterns created by someone else to do so, if this would bar me from being able to sell them. I gather from the information you provided, I am able to sell the clothes I make? Am I wrong in saying this?

Sarah Forbes said...

Yes! You may absolutely sell items made on a sewing machine with store bought (or someone else's) patterns! It is a common practice.

This article was primarily about whether or not you could copy patterns. Selling clothes made from someone else's patterns is rarely an issue of legal dispute. Sometimes the pattern creators will ask you not to sell what you make from their pattern, but (from my understanding) they have no legal recourse.

serenblaidd said...

I have a book of old patterns (1950's or 60's I think). I was considering making up little packs to see on Etsy or Ebay, containing a copy of the vintage pattern, buttons, vintage-style fabric and thread to make them up. Do you know if it would be okay to do this with Vintage patterns? I am in the UK.
PS Your site is brilliant. I love it :)

Mel said...

Sweet article! This really helped me a lot! I don't know if this will hold up in Canadian courts though. The U.S. has better property laws than Canada, or so I've heard...

Andurian said...

You said earlier that a pattern creator has no legal recourse if they ask you not to sell items made from their patterns. I agree with you as an intellectual property matter. However, ff they are up front with this requirement, it could constitute a contract between buyer and seller.

Beyond this, it would also be rather rude on the part of the buyer. There are more than enough patterns out there; there's no need to pick a fight. Or, for that matter, to purchase from someone with overly restrictive demands.

Lil Tex said...

I was just reading up on this and found your site. I agree 100%. I look and look and look for all these beautiful old 50's and 40's patterns and I don't want to drop $150 on a dress pattern, if I had $150 to drop, probably wouldn't be making my own clothes in the first place. :) I just think, I would love to be able to share these ones that i do have, a data base of sorts to help keep such beautiful things alive. I don't want to sell them for money, I just want them to be accessible to anyone. Fine don't touch anything from say 1980 on, but earlier than that, I agree, should be fair game. I know how to copy a pattern and break it down to pdf form to be able to print on normal letter size paper. I just don't want to land in hot water for sharing the love so to speak. Thanks for your article, it gives me hope.

Missy said...

So if I were to buy a pattern online today and sewed the garment Am I allowed to sell that? I just want to make sure I'm understanding this properly.

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