Re: Reproduction of pattern v. finished work

Mon, May 04, 1998, Karin Blue <bluewr[_at_]iquest.net> wrote:
>
> Many clients and friends of mine are involved in needlework
> (everything from embroidery or "cross-stitch" to knitting and quilting).
> Designers market patterns (or charts) expressly meant for reproduction
> of the item and often have specific fabrics or other items produced that
> are included with the chart in order to reproduce the work. Many
> needlework enthusiasts have personal web pages where they display their
> finished products. These are not products for sale, but are simply
> pages of "look what I did!". The question have arisen as to whether
> this is a copyright infringement.

Interesting question. It seems that needlepoint has many parallels to software -- copyright and repetitive stress injury, to name two. With regard to your question, I ask: To what extent can charts or patterns be generated from images of finished work found on a Web site?

It seems to me that if they can (and I think they indeed can), the pattern that results is a copy or at least a derivative work based on the original. (Indeed, the image of the finished article placed on a Web page is itself a copy or derivative work based on the original chart.) As a result, the person who first published the chart or pattern is opened to a new form of reproduction not envisioned by their first publication. In other words, the copyright owner publishes in a print medium expecting those who have purchased a copy of the printed publication (or the package of yarn containing it), and perhaps their friends who borrow the ohysical copy, to reproduce the design in a needlework article. Sure, you could photograph a finished article at a show, or at a friend's house, but that would be a small volume of use. Now, putting a photo on the Web would open a vast new audience, and if the web-based image could be easily "reverse engineered" (for lack of a better term), many more non-paying people could use the pattern to make their own reproductions.

On the other hand, these copyright proprietors are introducing their works into the world knowing and intending that SOME people will reproduce them in tangible needlework objects, and knowing that this is a world with an Internet, in which people with access to the Internet like to show off their handiwork.

At some point, however, "implied license" and "fair use" reach their limits. I would think that for some of the same reasons shareware proprietors, in theory, can enforce copyright rights in their works, needlework copyright proprietors could find ways to do so as well.

I suppose the answer is for the copyright owners to put out a "license" when they publish their works, that negates any implied license beyond the person who purchases the first copy. Having done away with unintended licenses, the proprietor would then argue that strong considerations in regard to the fourth fair use factor rules out a finding of fair use on behalf of anyone else, or at least those whose charts derive from an image posted on the Web. It could be an interesting case, but for the money involved, I can't imagine anyone actually litigating it, short of a media company whose famous characters happen to be involved in this kind of infringement.

Ron Abramson
<abramson[_at_]hugheshubbard.com> Received on Tue May 05 1998 - 17:33:10 GMT