Copyright

Pondering copyright: an unpopular position

Reader beware: this is a long post, with multiple links to further reading. It is also likely to bring down the fury of pattern creators all around the web, if they ever happen to find my humble online abode (which isn’t likely, but could happen) and probably make me persona non-grata in many online crafting circles. Read at your own peril, and feel free to have at me in the comments.

Further disclaimer: I am not a lawyer. I don’t play a lawyer on television or online. I am not offering legal advice. I am sharing what I have learned by doing a bit of research.

Long, long before SOPA or other variants were even thought off, I had declared my hatred of all things piracy, most particularly when the pirated items are books, but also in general. (You are welcome to do a Google search for my comments at the time of the Cassie Edwards plagiarism scandal–handle azteclady–and later on, here and here)

The reason for copyright, if I understand it correctly, is to provide incentive to the artist. If a person can’t profit from her creativity, then other things—like, say, making ends actually meet—will take precedence. When creativity is stifled, innovation tends to slow down. To a crawl not dissimilar to that of frozen molasses.

However, taking copyright to the extreme also stifles creativity because, in most cases, new stuff starts as old stuff that someone looks at in a different way. All those “what if I did this first instead of that?” or “wouldn’t it look better if I didn’t put that there?” lead to entirely different things and ways of doing things.

So there must be a balance, right?

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Then we move on to things we make. Remember this post?

See, many patterns (online and print) have that little “not for commercial use” line, and many more say things that translate to “can’t sell what you make using this pattern.” As I’ve said before, I understand the desire to protect what one creates—to be rightly recognized as the person who came up with that and to be compensated for it. That’s fair and morally right, absolutely.

But part of me wonders whether you can take that too far *coughDisney¹cough*

Let’s say that I read a tutorial on how to sew a little wallet-like tea bag pocket thingie. It explains how to sew lining to the main fabric, how to trim edges to the corners are neat when the project is turned out, etc. Does the fact that I learn these things in that specific tutorial mean that now I cannot sell anything I make that uses those techniques? Pretty draconian, yes?

And yet, when I read some so-called copyright statements online, that’s the impression I gather the writer wants me to get. (Never mind that s/he most likely learned those same techniques from someone else who learned them from someone else who learned them from someone else who…)

Then I followed a link from a thread in Etsy’s business forums, to this video². Keeping in mind that I don’t know the person speaking from Adam (or, in this case, Eve), I like that she wrote in the description of the video more specific information gleaned from her own research, and further, she gave links to other resources.

Now, I need to do my own research, using her links as a stepping stone.

From Taberone I learn that useful articles cannot be copyrighted—which makes sense. I also learn that the vehicle for the tutorial/pattern can be copyrighted but not the items depicted in them:

“For example, a drawing or photograph of an automobile or a dress design may be copyrighted, but that does not give the artist or photographer the exclusive right to make automobiles or dresses of the same design.”

Again, makes sense.

Replying to a query about selling quilts made from purchased patterns, Taberone says (in part):

“A pattern is sold, or published, with the intention that you use the pattern to make something. It could be a pattern for making a bird house from wood. Does that mean you cannot make more than one bird house? No. Like the song recording and the book, the pattern is there, available to be used again. But, unlike the sound recording and the book, the pattern requires the purchaser to obtain materials with which to make something. Tangible items that are outside the copyright. These tangible items are then sculpted according to the pattern’s instructions and then assmbled into a useful item. Unlike listening to the sound recording or reading the book, using the pattern results in an end product that can be physically handled.”

Furthermore, again taken directly from Taberone, “The Copyright Act expressly sets forth that copyright protection does not extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery.” This rule, the idea-expression dichotomy, means that ideas, as opposed to expression, are not copyrightable.

If an idea were copyrightable then there would be only one detective, Sherlock Holms, one super hero, Superman, and one cartoon character that was a duck, Donald Duck (say goodbye to Daffy Duck). It is the expression of the idea that can be copyrighted, such as Sherlock Holms, Sam Spade and Dick Tracy. If an idea for a product is original it could qualify for a patent but not a copyright.”

Okay.

So if I learn a technique to make something, whether by watching a video online or reading a book, or in a class somewhere, whatever I make using said technique is mine to do with as I wish—to sell or give away. If I’m inspired by something someone else made—wherein what I make is not so similar as to be a copy—whatever I make after that inspiration is also mine to do with as I wish, including selling it.

This last bit is particularly apt for crafters (check this awesome article by attorney Paul C. Rapp)

I mean, we all learn from other crafters and we all put our own spin on whatever it is we learned to make. I don’t think any one crafter has claimed to be the original creator (and therefore copyright owner) of the bookmark or the cat, so if I make a bookmark with a cat on it, based on a pattern from a book, what I’m selling is the finished product—the materials and the hours of labor that went into it—not the idea.

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Again, so far so good, right?

But here comes the part that is likely to have people clamoring for my blood:

If a pattern, tutorial, set of instructions or template cannot be copyrighted, then it follows that if I make something using said pattern, tutorial, set of instructions or template, then I can legally sell that item. I don’t even have to credit the source (though I personally think it’s the decent thing to do, I am talking about legal obligations here).

The person who created the pattern, tutorial, set of instructions or template may not want me to do so (hence those statements claiming that those very things are under copyright–even though they cannot be) but I am not doing anything illegal or unethical.

Anyone else may decide not to ever sell anything made from a pattern they bought, or even from a free pattern offered online or elsewhere, because they want to defer to the wishes of the creator, and that is all good and well.

But neither them nor the original creator have the right to call me names or accuse me of theft (as tempting as I’m sure it would be), if/when I make something for sale out of those same patterns.

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Further reflection: even using the same template/tutorial/pattern, usually people will produce entirely different items. The finished item may fulfill the same function, but individual style and taste and level of competence will definitely make a difference in its quality–and by quality I don’t only mean well made vs not well made, but also the tone, the feeling of the final product.

Want proof of this? Visit the blog or website of someone who offers free tutorials or patterns and encourages their visitors/followers to put their own spin on the object created. Check the galleries, see the many flavors that one object can have.

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Further reading: this comment and this comment, then this post (all at Dear Author)

More recently, this blog post.

Also, fair use (at least in the USA)–specifically for bloggers, here (thank you, DA Jane)

Robin/Janet further clarifies copyright, plagiarism and their intersection, here.

And you can add your thoughts here if you so wish.

In this blog, all related posts collected under this tag.

Available from Duke’s Center for the Study of the Public Domain, the book Bound by Law? Tales from the Public Domain (A comic book and treatise on copyright at the same time.)

This post by Marc Randazza at his blog, The Legal Satyricon, on the Three Point Landing.

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And just in case you missed it: I am not a lawyer and the above is not legal advice. I am not liable if someone sues you for copyright infringement. It is your exclusive responsibility to educate yourself on copyright and fair use.

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¹ Have you noticed how they are trying to extend the protection of copyright unto eternity? How does that actually jive with the original stated purpose of copyright, which is to foster creativity?

² The reaction to this video has been incredibly negative–threats, insults, the whole nine yards. What does it say about me that I’m not surprised by this?