Re: Reproduction of pattern v. finished work

From: Bob Stock <bstock[_at_]ucla.edu>
Date: Tue, 05 May 1998 17:28:55 -0700

On 5/4/98, 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.
>
> My initial thought is that it is the chart or pattern that is subject
> to copyright. After all, it is the intent of the designer that the
> chart be reproduced into a finished work. These works are often (but
> not always) modified in terms of fabrics and colors used. They are
> displayed in homes and given as gifts. (I realize the sale of the items
> may be another issue, and that isn't my question here). Many of these
> items are shown by the needleworkers at conventions and shows. Is a
> photograph on a website different? Is this a violation? It is
> apparently the position of many designers that it is. I would agree
> that photocopying the chart or pattern would be a violation, but to
> control the use of the finished item? This seems to me to be tantamount
> to unlimited control over the use of something that was *intended* to be
> reproduced. What do you think?

(US law answer)

I would conclude that the people who have bought the pattern purchased, along with the pattern, an implied, nonexclusive license to create a derivative work *and*, as a logical and legal consequence, to own any copyright in that derivative work (I'm assuming enough creativity in the finished product to satisfy the threshold of originality demanded by copyright). Of course, assuming that there is no writing to this effect or even an express oral agreement, one has to hop the implied road just to get there.

What are the other possibilities?

1. That the purchaser of the pattern was licensed to create a product but the copyright in that product belongs to the seller of the pattern? That can't be because, barring some sort of written agreement between them, the seller isn't the author of the finished product.
2. That the purchaser isn't permitted to do anything with the pattern except hang it on the wall or put it in his scrapbook? That makes no sense. Why would anyone buy it with that in mind? If that were the case, then just creating the finished product would be a violation of the pattern owner's copyright.

This isn't like the implied license permitting the copying of a web page when a user downloads it but not permitting that same user to make multiple copies and use them in other ways other than just viewing it. In that kind of scenario one can easily make an argument that the scope of the implied license is limited to just making one copy. The distinction between the web example and yours is that the implied web license permits a reproduction of the work but doesn't permit the user to prepare a derivative work, whereas in yours the only sensible interpretation of the implied license is to permit the creation of the derivative work.

---

Bob Stock <bstock[_at_]ucla.edu>
UCLA School of Law '98
http://www.geocities.com/Paris/1206/

---

Received on Wed May 06 1998 - 00:27:55 GMT