Copyright and fair use

[kcabrera74]

Hello everyone. Since the issue of copyright is of such importance to us tatters and to everyone in general, I decided to learn more about it and had a lengthy conversation with two copyright lawyers I usually work with. My question, and I’m sure, the question most of us ask around and never get a straight answer, was: How can I use other people’s designs without infringing copyright laws? And the answer was: “Making sure the way you use other people’s designs falls under the federal “fair use” doctrine.”

FAIR USE, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test:
1.- the purpose and character of the use, including whether such use is of a 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; and
4.- the effect of the use upon the potential market for or value of the copyrighted work.

More info on Fair Use can be found
here: http://www.copyright.gov/title17/92chap1.html#107
and here: http://en.wikipedia.org/wiki/Fair_use

However, IT IS IMPORTANT TO TAKE INTO ACCOUNT THAT NOT EVERY USE OF OTHER'S PEOPLE WORK CAN BE DEFENDED BY A FAIR USE CLAUSE. The cases, when and if, brought before a court, are decided on a case-by-case basis - so we need to be very careful and respectful when using the work of others. There will always be some designers that will have problems with the manner in which other people reproduce or represent their creations. This needs to be solved in the best possible manner and showing the utmost respect to the creator of the work.

Another thing that is very important, in my humble opinion: Think before you speak. Before threatening people with a legal action, make sure you know what you're talking about. Knowledge is a very powerful weapon, not only for the attacker, but for the victim as well. It is very important to know the law, and be aware of how far we can go without hurting ourselves or others.

Happy -and safe- tatting!

[PattyD]

And the American law is not universal. And the international application of copyrights are not uniform. And this is an international forum. Sigh... so many ifs, ands, buts and maybes. But I believe that InTatters as a whole strives to recognize the rightful designers of patterns and name them. And a Tatter's work is theirs and their photos of their work is theirs and can be copyrighted by the Tatter who created it. The American law is that an item is copyrighted by the simple act of creating it. Applying a copyright symbol is at the creator's discretion.

In everyday practice on InTatters, this means that anyone can publish their own picture of the their own work and courtesy is shown by naming the designer or source of the design. Designers, as a whole, make very little for their considerable efforts. We respect and honor those efforts for the tremendous benefit we all receive from their inspiration and hard work.

It is interesting to note that the beginnings of copyright were all about the right of a printer to have exclusive rights to print a book and not have any other printer make copies of it for a specified length of time. At the time, printing was accomplished by setting each individual letter of a page, so it was a considerable amount of work. The author frequently got nothing for his troubles.

The Encyclopedia of Needlework, that is so well known, has very good illustrations. Almost every one of the illustrations has been lifted and copied in other needlework books from the 1800s. I have pored over the Encyclopedia so often (it was the only lace book I had for a very long time), that the first time I became aware of the source of an illustration, I was shocked and wondered "How could they DO that?" The short answer is: there was no law against it. Partly because the subject matter (women's fancy work) was simply not taken seriously and also that general copyright law was very weak.

Publishers and corporations still hold most copyrights, meaning that even if an author would wish to republish, they may not have a legal means of doing so! And the almost universal term of a first copyright is 90 years. So no matter how much we would love to see certain books republished, it will take a long time to see them given new life.

I am grateful for the wide variety of tatting material that is available and that the net has made even more available.

[xstchntat]

Thank you so much for this and the next time I will think more before putting my foot in my mouth as I often do. Thank goodness it wasn't all public.

[Bespoke Orchid]

Being fairly new to tatting, it strikes me as odd that some copyrights on designs could be upheld, more so for the beginner patterns. It is plausable that two people can come up with similar designs. In the case of those one ring butterflies and flowers, I would say that the design variation is pretty limited; yet I have seen copyrights added to the bottom of the patterns.

For advanced and intricate patterns, I do respect the copyright of designers I feel that blatantly ripping off the work of someone else for a profit is morally reprehensible. But, how many of us have seen designer dresses and knocked them off with a few tweeks for ourselves.

Every creative industry has this challenge of deciding whether to take a philosophical position of scarcity or of abundance.

Scarcity is the traditional copyright. YSL and Dior have taken each other to court over designs. The record industry vs. Napster and file sharing software. The book industry vs independents. Scarcity believes that if you gain, I stand to loose. What is mine must be defended. I cannot trust you. These traditional artistic industries that have taken the stance of protectionism are failing. Miserably. They stunt the art that they sell. They waste all of their energy on the past, and what has been.

Abundace is Creative commons, open work, shareware and public domain. There are increasing numbers of authors, musicians, and visual artists that are taking the stance that when I produce something, the next person can take it, change it for the better and keep the cycle going. It is when artists invest their energy in the future, and taking the art to a different level.

I think I would prefer to be known for innovation and pushing boundaries, always questioning and looking for what is interesting. Eventually the trolls (those who rip others off) will be seen for what they are. Uninteresting and unable to keep up.

I wonder if anyone has heard of Creative Commons (www.creativecommons.org). There are many artists in other fields that openly licence their work through this organization.

[im4michigan]

I have actually written knitting patterns and while US Copyright law says I own the copyright just because I wrote it, if it were to go to court over some issue, it would be a he said/she said in terms of who actually wrote it first. So, on the advice of my business attorney (I own a knitting shop/business), I applied for copyright protection with the Library of Congress. Now, I can PROVE that I hold the copyright to my designs if it were to come to that. Copyright laws now say I own it for my lifetime plus 75 years after the date of my death.

You're right - it is very plausible that many designs could be duplicates - the easier the pattern for sure, the more folks are likely to sit down & come up with the same thing - a butterfly, a simple group of rings, chains, whatever. If it goes to court, the court decides case by case. But, I personally know designers that have been quick to take credit for something that they claim to have come up, put the "copyright year by so and so" at the bottom of the design, and never register it just because registering with the Library of Congress is expensive and very time consuming. And for clarification - I mean in the knitting world - I'm a newbie to tatting. And the designers I'm thinking of are not well known designers, but new to it and are anxious to get their name out.

Copyright law can be confusing. And most people I have met, thankfully, are the kind of people who respect copyrights. But we all know that some folks don't - and it's a shame.

[Kersti]

Registering a work is not a requirement of copyright - but it does give you some clout in court. However, if you register a work that you have copied and the original can prove that they pre-date your registration, it may not help you at all. Again, it's up to the courts.

It's a fascinating topic, and the most fascinating thing I think is how protective people are when it's such a small community - it seems that the smaller the community the greater the desire to protect.

Thank-you and thank your lawyer workmates for the information, it's great to get some real legal input!

[soyloquesoy]

I wonder if anyone has heard of Creative Commons (www.creativecommons.org). There are many artists in other fields that openly licence their work through this organization.

Yes, there are tatters who offer their patterns through creative commons - Jane Eborall's are the first that come to mind. I particularly like the "share alike" licence.

I really agree with your general views about the underlying philosophy of scarcity vs abundance Thanks for wording them.

[JaneEb]

Yes, there are tatters who offer their patterns through creative commons - Jane Eborall's are the first that come to mind. I particularly like the "share alike" licence.

I really agree with your general views about the underlying philosophy of scarcity vs abundance Thanks for wording them.

Ah, somebody noticed my Creative Commons Licence!!! Thanks for mentioning it. I found this and added it to my site some years ago after a tatting newsletter from a group I used to belong to popped through my letterbox with MY seahorse design re-written (horribly badly!) and with somebody else's name as the designer!! As you probably realise I try to make my designs a bit 'different' so I immediately could say that this was my design. It was originally published in a weekly magazine here in the UK in 2003. This resulted in a 'discussion' with the tatting group who distributed this newsletter and resulted in them saying at first that it was OK to take somebody's pattern, change it by 10% and then it became 'yours'. This isn't true as they finally found out. The lady who had 'stolen' (I use that word with a smile) my design was a dear old soul well into her 80's and who hadn't realised there were such things as copyright on patterns.
When it comes to the simple patterns (I think of them as 'generic') that we all see being stumbled across and 'published' by new designers with their 'copyright' symbol on I tend to wonder if they ever, ever check that the design hasn't been done before. I feel a little more encouragement to check would be good idea as I can foresee problems in the future. With the internet, forums, yahoo groups and blogs it's really simple to ask around to see if a design really is new!
I do like to see and encourage people to 'alter/improve' my work and will happily add those to my site (time permitting!) either in the original pattern or as another page. Only by sharing and encouraging each other can our craft continue to progress. However don't let anybody 'steal' my work or I'll throw a major temper tantrum!!! Hang on, that would be hard on a computer, eh?
Jane
http://www.e.n.e.btinternet.co.uk/ - Tatting patterns
http://janeeborall.blogspot.com/ - Blog
http://www.etsy.com/shop/janeeborall - Etsy shop

[Liyarra]

Hmm Jane a temper tantrum online.......could be interesting. If you ever feel inclined let me know so I can watch ok? Work is SOOOO boring. Luvs ya girl!

( perhaps those buggers who create viruses are really only having a major hissy fit????)

[JaneEb]

Hmmm, you'll probably have to wait a long time, Liyarra as I'm a lazy old moo with waaaaay too much patience!!!!
Mind, those who create viruses really should get out more and get an interesting life of their own instead of making other people's miserable.