Stencil Copyright Question

[chrism]

Have a quick copyright question for everyone.  My mom makes greeting cards which she creates from store-bought stencils (from stores such as AC-Moore or Michael's).  Some have copyright markings, some do not.  Do you know if a greeting card generated from a copyrighted stencil would infringe that copyright?  I'm assuming it would so I suggested she might want to consider having some new stencils made from her own drawings. She would like to start selling her cards online so I thought it was worth looking into.   


Thanks!
Chris

[Smokin]

Its a good idea to make your own. They may give permission, you can always call them and find out or look for info on their site about what they agree to let you use it as.

Its a good question and one that's come up before with "clip art". I forget the specifics and who did what or the details, but I believe it was Microsoft sold some office word or works program with clip art. If you look deep into the agreement they state you can use it for x,y,z, but not commercial purposes or blah blah blah. It could have been another company, but basically its something worth worrying about.

[DogDayPM 9er9er9er]

Its a good idea to make your own. They may give permission, you can always call them and find out or look for info on their site about what they agree to let you use it as.

Its a good question and one that's come up before with "clip art". I forget the specifics and who did what or the details, but I believe it was Microsoft sold some office word or works program with clip art. If you look deep into the agreement they state you can use it for x,y,z, but not commercial purposes or blah blah blah. It could have been another company, but basically its something worth worrying about.

Upfront disclaimer: Mostly posting here because I'm intrigued by the question and answer so far, and want to get it back onto the front page so hopefully some others will chime in.

That said - isn't the sale of the stencil, even a copyrighted stencil pattern, pretty much permission to use the stencil in the way it is intended to be used - to make stenciled patterns?

Absent some explicit "shrink-wrap-like" type of license (of the sort mentioned by Smokin') accompanying the copyrighted stencil, why would it matter whether one uses the stencil to make pretty patterns that are thrown away vs. using the stencil to make pretty patterns that are sold?

[Smokin]

Well who defines "intended use"? The stencil makers could argue that the intended use was for personal, non commercial purposes.

Here are Microsoft's guidelines to using their clip art which can be used as a substitute to stencils.
http://www.microsoft.com/about/legal/permissions/faq.mspx

Here are some stencil sites I browsed.
http://www.walltowallstencils.com/copyright.php

http://stencilmein.com/faqs.php

Stencil Me In, Inc. has copyright protected all our original designs through a copyright protection seal service. Fact or Myth? Stencil Me In, Inc will enforce their copyright to the fullest extent of the law.

http://www.stencil1.com/shop.html

COPYRIGHT NOTICE: ALL STENCILS ARE COPYRIGHTED DESIGNS. NOT FOR USE FOR ITEMS FOR RESALE.

[Smokin]

This also reminds me of stock photo sites where they sell "royalty free photos". Its easy to assume you are buying the right to use photos commercially without paying royalties, but people might be surprised by their user agreements which may restrict many kinds of commercial uses of those photos.

Some places allow any and all kinds of uses of their stock photos, most sites place restrictions.

[DogDayPM 9er9er9er]

COPYRIGHT NOTICE: ALL STENCILS ARE COPYRIGHTED DESIGNS. NOT FOR USE FOR ITEMS FOR RESALE.

Smokin', thanks for coming back with the further info like that quoted above.  That notice is like what you were talking about above except it appears to base, or be an attempt to base, the usage limits in copyright law instead of in a use contract (like the Microsoft license above).

Now, two questions - can a purchaser of a copyrighted stencil given "mere" copyright notice ((C) notice but no use admonition) assume that means he cannot replicate the stencil itself, nor make stencils similar enough to be considered derivative stencils (usual (C) limits), but assume he can sell the paper designs he's stenciled from the stencil?

Second question will show my ignorance, I guess.  Absent a contract (like Microsoft's), what is there in the bundle of copy rights that would enable the owner of a copyrighted stencil to actually enforce the "NOT FOR USE FOR ITEMS FOR RESALE" provision? 

Is there an argument that the stenciled paper itself is somehow an infringing derivative of the copyrighted stencil? 

Is that a good legal argument?  Or is the admonition "NOT FOR USE FOR ITEMS FOR RESALE" rather like those signs on the back of a dump truck that try to absolve the trucker of liability if the rock bounces off the road between falling out of the truck and smashing your windshield?  (I.e., good for the suckers who believe it, but not otherwise?)

Thanks!

[chrism]

Wow thanks for the feedback guys.  I understand patent law but don't know much about trademark law so I'm glad to hear I've asked an intriguing question.

If we're only talking about the straight copyright issue it seems the underlying question here is whether the piece of paper that has been stenciled would be considered a derivative work.  Is that fair to say?  Anyone have any further thoughts on that?

However, it sounds like you guys are saying that there may be an end-user agreement, beyond the copyright that further restricts use of the stencil.  So, the question is, how would we know about the end-user agreement -  does this language have to appear on the packaging?  I know she doesn't still have the packaging for many of the stencils she uses but we might be able to find some in the stores still.

Thanks again!

[DogDayPM 9er9er9er]

If we're only talking about the straight copyright issue it seems the underlying question here is whether the piece of paper that has been stenciled would be considered a derivative work.  Is that fair to say?  Anyone have any further thoughts on that?

However, it sounds like you guys are saying that there may be an end-user agreement, beyond the copyright that further restricts use of the stencil.  So, the question is, how would we know about the end-user agreement -  does this language have to appear on the packaging? 

These questions are why I'm hoping someone more refreshed in these matters will jump in. 

On the first quoted point above, let's say arguendo that the stenciled paper is a derivative work (even though I have my doubts...).  Obviously, though, just any stenciled paper can't be an unauthorized derivative work, because stenciling on paper or other medium using the stencil is what the stencil has been sold to you for.  Then in this given where a stenciled paper is a derivative work, there must be some way of letting the user know what is and is not an authorized derivative work.  So maybe the warnings like Smokin' posted ("NOT FOR USE FOR ITEMS FOR RESALE") fit that bill.   

If the restriction is not vested in the copy rights (i.e., if the given above is not true and the stenciled paper is not reasonably considered a derivative work), then I'm not sure any of the notices exampled above have any real legal force.  It's been a long time since I looked at the law in this area, but I think at that time it was fairly settled that a statment of terms without some means of positive acceptance by the buyer (even if just "click to accept") didn't constitute a contract.

[simpleai]

I was reading through the discussion and have a related question, doesn't actual act of purchasing an item which has copyright restrictions means that you (at very least) passively agree with the copyright's terms (of usage)?

[DogDayPM 9er9er9er]

I was reading through the discussion and have a related question, doesn't actual act of purchasing an item which has copyright restrictions means that you (at very least) passively agree with the copyright's terms (of usage)?

Yes, that is a good example of how the owner can reserve less than all of the copy rights to him/herself.  But I don't think it's an agreement.  A book may state that all rights are reserved (may not copy at all for any reason) or instead may say that you are allowed to make a limited number of copies (for example) "of the worksheets found on pages 23 and 45, but only for educational purposes".

In that example, it is not a restriction laid on the purchaser.  Instead, it is notice that the copyright owner has given up some of rights he has via copyright.  The purchaser does not "agree" with what is stated.  The purchaser has simply been put on notice that the copyright holder will not sue for infringement as long as the purchaser adheres to the notice (for example, making X number of educational copies).

So, while I may be parsing an invisible hair, I still think the notice provision has to hinge on whether the copyright owner has copy rights over the thing in question.  Here, the thing in question is what one makes using the stencil.  Is the thing made (stenciled paper) any sort of "copy" (in the legal sense) of the stencil for copyright purposes? 

If so, then I would guess a notice provision such as "COPYRIGHT NOTICE: [1] ALL STENCILS ARE COPYRIGHTED DESIGNS. [2] NOT FOR USE FOR ITEMS FOR RESALE" tells the purchaser [1] that the owner has of course reserved the right to make copies of the stencil itself, and [2] with regard to what might be infringing "derivative copies" (stenciled papers made using the stencil), the owner has reserved only the right to make copies for resale.

[Smokin]

So, while I may be parsing an invisible hair, I still think the notice provision has to hinge on whether the copyright owner has copy rights over the thing in question.  Here, the thing in question is what one makes using the stencil.  Is the thing made (stenciled paper) any sort of "copy" (in the legal sense) of the stencil for copyright purposes?

Of course its a copy. All a stencil is, is a derivative of a design or graphic image. It doesn't matter if you draw it, photo copy it, take a picture of it or use it as a stencil, they are all copies of that design/graphic. The question is does the copyright holder lose rights to their work by making their work into a stencil? I would seriously doubt this would be at all true, and even if an "implied license" is applicable to use the work, it wouldn't be so expansive and so broad as to cover commercial reproductions of that design.

Consider buying a cd or music. The point of it is to play the music and have it performed, but the point of the product doesnt void out the rights of the copyright holder. They can still prevent their work from being performed in political events, they still have rights that they can exercise regardless of whats written on the package.

Courts have essentially held that in order to give up a copyright or release work into the public domain, then it must be done in writing and explicitly clear and stated. You cant accidentally release work into the public by creating a stencil.

Of course, as with all graphics, arts, and other protected material, "fair use" is always in play. Also the question of if the graphic or design in question is even original and not already in public domain.

[DogDayPM 9er9er9er]

So, while I may be parsing an invisible hair, I still think the notice provision has to hinge on whether the copyright owner has copy rights over the thing in question.  Here, the thing in question is what one makes using the stencil.  Is the thing made (stenciled paper) any sort of "copy" (in the legal sense) of the stencil for copyright purposes?

Of course its a copy. All a stencil is, is a derivative of a design or graphic image. It doesn't matter if you draw it, photo copy it, take a picture of it or use it as a stencil, they are all copies of that design/graphic. The question is does the copyright holder lose rights to their work by making their work into a stencil? I would seriously doubt this would be at all true, and even if an "implied license" is applicable to use the work, it wouldn't be so expansive and so broad as to cover commercial reproductions of that design.

Consider buying a cd or music. The point of it is to play the music and have it performed, but the point of the product doesnt void out the rights of the copyright holder. They can still prevent their work from being performed in political events, they still have rights that they can exercise regardless of whats written on the package.

Courts have essentially held that in order to give up a copyright or release work into the public domain, then it must be done in writing and explicitly clear and stated. You cant accidentally release work into the public by creating a stencil.

Of course, as with all graphics, arts, and other protected material, "fair use" is always in play. Also the question of if the graphic or design in question is even original and not already in public domain.

Thanks for continuing to plug away at this (and me) here.   

I understand your points but honestly wonder if the music example isn't nonanalogous.  For one thing (to go off on a tangent right away), when you use the music as intended (playing it) you are not inherently making a fixed copy.  On the other hand, the intended use of the stencil is to make a copy of the design represented by the stencil.  But maybe this is a distinction without a legal difference (I said it was a tangent).

The rest of your points about the music (playing for large crowds, or entrance-fee events, or playing it in mercantile settings require paying additional license fees etc.) are clearly settled case law and have been for some time (and some aspects I think codified later).  At least that is my foggy recollection of the genesis of these doctrines.  If that is correct (if from case law), then until the cases hit the courts these things were not clearly apparent from the statutory law.  For example, wasn't it case law that first told us that the copyright holder could require more than the purchase price of the music be paid by a merchant who plays the music in her store?  But there just weren't any stencil cases in my old copyrights textbook and I'm frankly too lazy to search for them...

But all that aside, from everything you've written I guess I'm finally in your camp that the stenciled paper should be considered some sort of copy for purposes of the copyright laws.  From there I see it as a case of, given notice of which copy rights or uses the owner is reserving, the buyer can be legitimately prohibited from those reserved uses.  But without clear law (statutory or case law) directly on stencil point I'm still stuck arguing on the side of the user that some notice of the reservation of rights is required to be communicated. I.e., unless it's already been tried and shot down, I'd like to argue sufficient factual distinctions between commercial use of music vs. selling stenciled papers.  I'd probably lose the argument so it's a good thing I don't actually practice this area of the law.

Good point about the public domain vs. originality issue.  I have daughters and so we have approximately 97.5 unicorn stencils at home and for the most part I cannot tell them apart.  (The "point 5" is from a cheap stamped-out stencil where the horn void didn't clearly stamp out.  Guess that one's actually a horse.)

[DogDayPM 9er9er9er]

A note back to the OP:
Wonder if these folks have any stencils she likes http://www.primitivestenciling.com/index.htm.

Here's their copyright comment, which seems a bit more forgiving than others.
http://www.primitivestenciling.com/aboutourstencils.htm
"All stencil designs and instructions are copyrighted from reproduction. This means that you may not duplicate any stencil or instructions..." [but] "...Professional crafters are free to use our stencils to create items for resale as long as the individual who purchased the stencil(s) is stenciling the item(s) on their own.  Mass reproduction is strictly prohibited...."
"What does our copyright mean?
Our copyright protects us from reproduction of our stencil designs and instructions.  This means that another stencil company or any other company or individual may not duplicate our stencil designs or instructions and sell them.  We own the rights to the design, but when you purchase them from us, you own the rights to use them to create items for personal or professional use..." 

[Kaitlin]

It's such a pleasure to see a business which takes a sensible approach to copyright instead of relying on overly broad in terrorem provisions! 
Thanks for finding that, DogDayPM! 

[DogDayPM 9er9er9er]

It's such a pleasure to see a business which takes a sensible approach to copyright instead of relying on overly broad in terrorem provisions! 
Thanks for finding that, DogDayPM! 

You're welcome.  But you're also just the sort of person I've been hoping will stumble upon this discussion and shed some light on the questions involved.

Got any answers for us?