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[elibella]

There is arguement on how sewing companies,,, do not allow the use of you buying 1 pattern and sewing several items, from that 1 pattern and selling those items which you'v sewn.  They claim it's an infringment, because you are making more than 1 item, selling it to make profit. and then it would be considered manufactured and not  for home use. ( which is stated on their packaging).  
  My question is, sewing patterns are covered under Visual Arts Act 1990 , title 17 copyright "usefull objects", which clearly states, the graphic form is copyrightable, but the design is NOT automaticly covered.  The design must "stand alone" from the usefull object.  The wording is (the craftsmanship in graphic form but not in utilitarian aspect).  Section 113 tells me a copyright's limited scope, owners exclusive right ( DONOT extend to the "usefull object" in making, distribution or display of an item).  So therefor i think i am allowed to do what i want with the pattern, whether i make one "apron" or 100 "aprons" to sell, from the 1 purchase pattern, legally obtained, under the under the First Sale , and Fair Use Doctrines,,  I do understand that i cannot  paper Copy the pattern itself, and sell for profit, otherwise, the company has no basis in telling me how or what i can, and cannot do.   What is you opinion on this issue?                    thank you

[tabberone]

My opininon is that it is like the copyrighted fabric.

I can't copy the design or placement and print my own fabric but I can do what I want with the fabric.

I've argued that even though I sell I'm not commercial.  I am making every item one at a time, that is not commerical.  Additionally I sincerely doubt that a commercial outfit is going to the store and buying a pattern to use, they have their own.

I've heard these arguments but I've yet to see someone quote a court case.

And the pattern companies apparently haven't taken anyone to court over this issue.

[Isaac]

If you are making things to sell your usage is commercial.  You don't need to have items rolling off an assembly line to be commercial.

[tabberone]

I don't know.

That, "I'm not a commerical operation" has been used in a number of lawsuits and not challenged by M&M/Mars, Disney, Major League Baseball Properties or United Media.

You would think one of them would have challenged it.

And the question is where is there case law that says you can't use the pattern.

Yes, the pattern is copyrighted and you can't copy it.  But I don't believe the finished product is copyrighted.  If clothing were copyrightable then you wouldn't have all these knockoffs.

But that is just my opinion.

[Isaac]

There may not be copyright in the clothing, but don't you make copies of the patterns as you make the clothes.  If so then there is a hook to base a copyright infringement suit on.

The issue of whether or not a use is commercial is litigated very frequently.  I'm not sure where you get the idea that a defendant merely has to assert that there use is non-commercial and a court will simply accept the assertion.

[tabberone]

I wasn't the defendant, I was the plaintiff against United Media, Disney and Major League Baseball when I made the assertion.  They never came up with anything to counter that.  The lawsuits were over the use of their copyrighted fabric to make items for sale.

And no, you don't make a copy of the pattern.  It's tissue paper, you pin it on the fabric and cut around the edges.

I agree, you can't copy the pattern.  You can make items from it.

The derivative issue doesn't hold water since the federal standard is a derivative must be original enough for it's own copyright.

[Isaac]

Again, I'm not an expert with respect to what the protectable  expression in a sewing pattern is, but cutting around the pattern does produce a copy of the shape of the pattern.   If the shape is protectable expression, then you've copied that expression even if you do later sew that into a garment.

It's also possible that the pattern vendor could make a contract law argument similar to those software vendors make when they license software for non commerical or student use.   The thrust of the argument would be that whatever your rights under copyright law are, the conditions for sale of the patern preclude commercial use.

In any event, there can certainly be cases where no one contests whether a use is commercial because the answer is either clear or not relevant.  

In this case, you've stated facts which suggest that your use is commercial, and that commercial/non commercial use is a relevant issue.  

[nobody]

Isaac writes:

"but cutting around the pattern does produce a copy of the shape of the pattern."
I don't believe Tabberone is copying clothing *designs* by hand or otherwise - OR copying what is printed on the fabric either. She can correct me, but I believe she means legally obtaining fabric and making something with it. Those two acts are not the same.

"It's also possible that the pattern vendor could make a contract law argument similar to those software vendors make when they license software for non commerical or student use."

Shrink-wrap fabric licenses. I wonder if a court would agree. If I get some fabric at the fabric manufacturer/outlet, there is an implied use for it. Whether or not you make a dress for your daughter or put it on Ebay shouldn't matter. Copyright and trademark are different issues of course.

[Isaac]

Isaac writes:

 don't believe Tabberone is copying clothing *designs* by hand or otherwise - OR copying what is printed on the fabric either. She can correct me, but I believe she means legally obtaining fabric and making something with it. Those two acts are not the same.

I don't think she is referring to a fabric pattern copyright.  My mom used to sew clothes.  She would buy "patterns" which consisted of a set of paper shapes.   She would pin the shapes to fabric and cut around them to produce the shaped pieces of cloth that would be sewn together to make a garment.  I think the paper also had printed guides that allowed you to make garments of a particular size.

I agree with you that a shrink wrap fabric license does not seem feasible.  A shrink wrap license on the paper patterns of the type I described above seems somewhat (and perhaps only slightly) more feasible.  I'll admit to not spending a lot of time thinking it through.  

What theory would you propose for a pattern vendor applying restrictions on use of the product?

[tabberone]

I'm not sure why a pattern company would restrict the use.  Maybe on a designer pattern but to put a restriction of use on a pattern for a pillow or apron seems out of line.

There's a lot of debate going on on a lot of boards.

Some people say you have to buy a pattern each time you make the item.  Most patterns, especially home furnishing patterns have 10-12 items in the pattern.  They are saying if I use one item from the pattern, then want to make that item again I have to buy another pattern.

That makes no sense.

I haven't been able to find a pattern company that has taken someone to court over the use of their patterns to make items for sale.

[M. Arthur Auslander]

Dear Elibella,
It is unclear to me exactly what you have said. Basically duplcating a copyrighted work is an infrimgement. Off hand use a pattern more than once does not seem an infringement.

[elibella]

In reading title 17, there is an "Exception" when copyrights apply to the visual arts chapter. In that section, it stated that patterns as well as clothing, dolls, needlecraft kits etc. were called 'utilitarian objects" What i read was that the craftsmenship/ artist was protected in their graphic form of design, (paper pattern) but not automatically, in the  "utilitarian aspect" of the design.  Unless that design can "stand alone"in being so original that it can be copyrighted on it's own.
Another part of title 17, under visual arts, makes refrence to  LIMITED exclusive rights of copyright holder, as to making, distribution and displaying.

Example: chair with a design carved in to back, deign is copyrighted in graphic form, (on paper) but the chair(utilitarian) itself isn't.  Unless the chair is also designed which is originally different, that is can be patent/copyrighted on it's own.

So the question is, Pattern com. says not for manfacture use.  Home sewing (making).  Is copyright on just Tissue paper pattern? or also on the fabric copy cut out? Company says, you cannot make more than one fabric cut out, from one pattern, you must buy another. They then say when you sew together that fabric, as a an apron that you cannot sell the apron's you make for profit.
Example: Apron.  I must purchase 7 patterns, to make 7 of  them, but i am still not allowed to sell them? Who has the copyright on the finished apron?  I've embellished it different than the picture on pattern, but the basic shape was made from that pattern?
I hope i have made myself clearer. thank you.

[Isaac]

Your question is very clear and you raise an excellent point.  I'd definitely consider using that argument if I were defending a pattern user.

I would expect the counter argument to be that the intermediate step of cutting out cloth shapes doesn't make an article until it is sewn into an apron.  So even if the final article does not infringe, infringement occurs at an intermediate step.

If your argument prevails, then I don't see where the manufacturer has any ability to enforce a license without getting the customer to agree at the point of purchase.

[tabberone]

And an agreement would be just about impossible to enforce.

There are tons of patterns sold at yard sales, flea markets etc.

They've lost control of the pattern once it leaves their hands.

And if you want to see a pattern company that stepped in it do a search for monsterpatterns.com lawsuit against the major pattern companies. They shut down his website when all he was doing was selling the patterns.

(and yes, most of the search engines will take you to my website where I have the lawsuit posted)

[Isaac]

I read the complaint as well as the cease and desist letter that was posted.   I find the whole thing fascinating.  The complaint was filed a year ago.  Has anything significant happened since then?