Selling Goods Made From Patterns - Copyright Infringement?

First off - I'm not a lawyer so don't depend on this to keep out of copyright troubles! Also, sorry it's so long - this is complicated stuff!
But I did have a few comments and questions regarding yesterday's copyright post, specifically asking if selling items made from a pattern constitutes copyright infringement. So I did a lot of reading, and despite people's strongly held beliefs regarding this question, the answer is:
No. And Yes. Maybe.
Let me explain: Some people and sites such as Tabberone.com claim that a pattern designer has no legal standing when they restrict you from selling the finished product. They have some good points, but they seemed a bit biased and very pugnacious so I also looked on the US Copyright Office website, which has this to say:
Section 102(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
It seems to me that 102(b) describes exactly what a pattern does - it provides a procedure and process for making the garment which is depicted.  Procedures cannot be copyrighted.  So if this is indeed the case, you cannot copy and redistribute the actual pattern or the pictures (or maybe you can - see below), but anything you make using the process described is fair game for selling.
If it is as simple as that, then all the designers (like Amy Butler) who put all kinds of restrictions on their patterns and books saying you can't 'make and sell' are full of shit, and their lawyers are hoping the notice will scare you into unquestioning compliance.


But I also noticed a strong trend toward believing that if the designer forbids resale on the pattern, you must abide by that, but that if the designer explicitly states that handmade end products can be sold (as long as you're not making them in a factory setting), then it's okay to do so.
And that might have a case - because if you buy the pattern, you may have explicitly agreed to abide by their terms. That might bring it into 'contract' territory, not strictly copyright. Under this thinking, you have agreed to enter into a contract with them (you agreed when you paid for the pattern). You might want to read Susan Wigley's claims about using patterns.
The problem with that, I've noticed, is that often you cannot see that disclaimer until after you have purchased the product. And in a case like that any implied contract is probably non-binding - the courts haven't been unanimous. One case judgement states:  in many cases, the so-called shrink-wrap "license" agreement has not been reviewed at the time of purchase (having been hidden inside the box), and therefore is arguably not part of the implicit legal agreement accompanying the sale of the copy, and is thus not enforceable by either party without further "manifestation of assent" to its terms. And the other problem is that it might fall under the first-sale doctrine anyway, making any restrictions stated on the envelope or book null and void.


Another trend is to state that if the pattern companies haven't registered copyrights with the US Copyright office, that means it's not legally copyrighted, or somehow implies they know it's not copyrightable, or means you can do whatever the hell you want with it. As I explained yesterday, you do not have to register something to have it protected under copyright laws. That includes the US. So don't rely on that.


The trouble with all this is that there aren't many precedents dealing with this issue specifically. Usually when clothing companies sue each other, it's over trademark infringement, not copyright. That's not a coincidence; the reason for that is that trademarks in clothing are stricter than copyright, legally speaking.
Here are the closest precedents I could find:
In Baker v. Selden, 101 U.S. 99 (1879), the following case was specifically mentioned in the judge's decision:
"In Drury v. Ewing, 1 Bond, 540, which is much relied on by the complainant, a copyright was claimed in a chart of patterns for cutting dresses and basques for ladies, and coats, jackets, &c., for boys. It is obvious that such designs could only be printed and published for information, and not for use in themselves. Their practical use could only be exemplified in cloth on the tailor's board and under his shears -- in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms. Surely the exclusive right to this practical use was not reserved to the publisher by his copyright of the chart."
In Excella Pattern v. McCall Co., January 5, 1925., the judges stated the following:
"But the idea of printing directions on garment patterns is so obvious and so old that it cannot be monopolized by any one at this late date."


And there may be other reasons you never hear about a pattern company taking a sewist to court over copyright infringement. First of all, if their claims truly are all bullshit and their lawyers know it, they aren't going to be eager to have that clarified publicly in court when they can just scare a sewist with nasty 'cease and desist' letters and threatened legal action. 
Another reason may be that it would probably be a public relations disaster. If they took the average sewist who sold 3 AB handbags on her etsy site, who didn't claim the designs were her own, the craft/sewing blogosphere would be furious and would likely organise boycotts and email campaigns on the sewist's behalf, and the pattern company looks like greedy corporate bottom feeders.

So there is no easy answer. If you have an unlimited legal budget, you could find out for sure but I doubt anyone has that kind of money. I suppose if you have an etsy shop and you want to sell bags you made from AB's Style Stitches, you're probably screwed if her lawyers send you a 'cease and desist' and it actually has very little to do with copyright - you agreed to her (largely bullshit) legal claims and demands when you bought the book. And yes, I did just say they were bullshit - I listened to a Craft Stylish episode where Amy Butler was claiming that NOONE had the right to sell something made from a copyrighted pattern EVER, which I suspect is more wishful thinking than fact, although perhaps her lawyers are just telling her what she wants to hear.


But what is very real is that if a designer tells etsy they're not happy with you selling the end products, etsy can and will ban you and your shop. I suspect that's pretty rare, because it's a bad PR move and the market/community is really small. AGAIN, I'd like to stress I'm NOT a solicitor or lawyer - I just happen to know how to read government documents and have extra time, LOL.
And I'm a pattern designer myself - got a line of quilt patterns in the making, so it's not like this doesn't directly affect me. But if someone makes 'my' quilt and sells it, and I haven't expressly forbidden them to do so, then it's probably legal. It's probably legal even if I did forbid it. If someone makes 'my' quilt, takes pictures and starts selling the actual pattern, they are very guilty of copyright infringement. You're going to ask me, What if they change the design a bit? Well, I don't know the answer. Yet.


I'd like to end by saying that I invite comments and thoughts on this topic, because I'm interested in it and so is everyone else. What I don't want or need is a bunch of vitriolic histrionics landing in my email inbox. I know it's a heated issue, but I'm interested in the mechanics, not the ethical or moral aspects. Partly because I haven't decided where I stand on this, ethically speaking. And I don't need the attention of any Freetards, so if you are one and you leave nasty comments, you'll be banned.
Also, there's a law office in Romsey that gives you an hours' worth of free consultation, so I might pop in there at some point to see what they have to say - I promise I'll take notes and write about it!

© J C Excell, 2011
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