Copy rights

[Luann Udell]

There is an excellent article on this topic in the Jan/Feb 2004 issue of FiberArts magazine.  Written by Kayla Kennington (artist, designer and author) and Melodie Bankers (attorney and fiber artist), it's an amazingly straightforward discussion of copyright and intelletual property law.

The short answer to your question (which Melisssa already covered, too) is, is the original designer being compensated for what they invested in design time and making that technique accessible?  When a project for a specific, unique item appears in a how-to magazine, you pay the cost of the magazine to use the designer's idea FOR YOUR PERSONAL USE.  If you wish to use the pattern to make items for sale, you must contact the designer, who can respond in a number of different ways--simply giving permission, asking for credit, asking for royalties or a one-time payment, or saying no.

As for making molds from buttons, if the button is antique or vintage, it's probable the design has passed into the public domain.  Or is generic enough to use as a design element.  If you use a new button to create a mold to make more buttons to sell, that is probably not okay.

Here's a good example of how copyright works: There's a candle company who created molds from items like starfish, shells, etc. and cast candles.  Another company used those candles to create their own molds, then sold the candles made from the molds.

The courts ruled that if the second company had created their own original molds from actual starfish, shells, etc., that would have been okay--the IDEA of making a mold that way is not protected by copyright.  But since they were too lazy to do that, and merely made molds of the first company's finished candles, it was determined they were violating the first company's design copyright.

This is not as in depth as Melissa's excellent discussion, but hope it gives you something concrete to think about.
Luann

[Metalfairy]

If I find a design in a book or magazine, can I make it for resale?  
I get confused when I read in a book "No portion of this publication may be reproduced or transmitted in any form or by any means.....without the permission in ....
from publisher....  . Does this mean I can't make the projects in the book for resale?   What if I use the technique given in the book, like a russian spiral beaded necklace.  At what point does it become mine to sale?  What about making moulds and using buttons for patterns, am I violitating the button copyright?  This gets so confusing.  Do you have a book or resource that makes it easy?

[WriteBrainedWoman]

Hi.  You probably risk no legal repercussions by making crafts you see in most books and magazines. The copyright warning you cited relates to the pages themselves; you can't, for instance, photocopy a project out of there and then sell the sheets. You also aren't supposed to plagiarize an article in there, calling the words your own.  

Techniques (like how to make a spiral necklace) cannot be copyrighted.... though you would be in trouble if you claimed you had invented the technique (and you hadn't).  

More specifically, the U.S. Copyright Office says: "What is not protected by copyright: Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration." In other words, the procedure is not copyrighted, but book images of how to do the procedure are.  A beaded picture of Marilyn Monroe may be copyrighted, but the idea of capturing her likeness in beads is not... you can make your own design.  

But designs themselves are usually copyrighted, and thus the way you use them is at the mercy of the copyright holder.  Many books have clauses in their opening pages that make clear what you may and may not do, in which case you should adhere to their rules.  Three we have found:

- "The purchaser of this book may use the designs for personal use.  No mass production is allowed" (Dimensional Flowers, Leaves & Vines, by Barbara L. Granger)

- "The artists represented in this book retain copyrights to their individual works. The designs may not be copied for commercial use" (Artists at Work: Polumer Clay Comes of Age, by Pierette Brown Ashcroft and Lindly Haunani)

- "The written instructions, photographs, designs, patterns, and projects in this volume are intended for the personal use of the reader and may be reproduced for that purpose only. Any other use, especially commercial use, is forbidden by law without written permission of the copyright holder." (Making Wire Jewelry: 60 Easy Projects in Silver, Copper & Brass, by Helen Clegg and Mary Larom).

You are probably fine to use a button as mold, though if the button had a registered/trademarked logo on it, or is for some reason a copyrighted work of art (I've never heard of a button that was!'>, you might be in a gray area.  You cannot use a charm as a mold to recreate that charm for resale, though.  Basically, if your work is "substantially similar" to the original, copyrighted work, meaning the average observer would recognize the copy as having come from the original, you are in violation.

You can learn more about copyright law and how to access copyright records, at:
http://www.copyright.gov/circs/
http://www.ipwatchdog.com/copyright.html

[Polly]

Great, wonderful answers, you two!

One journalism graduate who has worked for a number of newspapers, and one expert crafter.

And thanks, MetalFairy, for asking such a valuable question.  This is very important for a number of reasons.  And it's easy to misunderstand copyright laws when it comes to non-printed items.

--Polly

does this copy right issues apply overseas or does the indivial countries have their own rules etc

[Polly]

Each country has their own rules, but I think these are good guidelines to follow no matter what country.
--Polly

[pugdog]

This is a thorny issue, and there is a lot of misconception about it.  It's one I'm also very interested in in all aspects of visual art, since such issues are *not* cut and dry as they are with reproduction of the printed or spoken word, or printed image.  I've been involved with visual copyright on the Interent since about 1983.  I have 1000's of copyrights, and hundreds of thousands of creative copyrights (things I've made, but not actually filed paperwork for) as well as a few REGISTERED trademarks (PUGDOG being one in two IC categories).

>> the U.S. Copyright Office says: "What is not protected by copyright:
>> Ideas, procedures, methods, systems, processes, concepts, principles,
>> discoveries, or devices, as distinguished from a description, explanation, or illustration."

Don't confuse the "Illustration" to be the actual work of art.  In that context, it means a "graphic" or visual depiction.

Most of what people want to claim is covered by the copyright law is really covered (or might be if it was unique enough or original enough) under Trademark or Patent law.

Copyright is both the weakest form of protection, and the strongest *if* you can prove it.

If you do a design from a book, and it's truly indistinguishable from the design as illustrated in the book, there might be some issues there.  MIGHT.  If you did not actually copy the DESIGN ITSELF, but created one from the instructions, than there really is no copyright violation.

Instructions are meant to be followed, and once published, you lose your claim to the rights under them, unless you were able to get a PATENT on the process or final result of the process.  You get the rights to the EXACT words as written, even the format/layout in which they were published, but NOT to the results of following them.  Think about cookies made from a recipie.  

Since no hand made design is EXACT in any way to any other, your physical interpretation of the instructions that were printed, are covered by your own creative license.  

Many of the claims in the books, or at the beginning of the books are blanket disclaimers, that when (or if) analyzed carefully, show they claim the publication and pieces of it as a registered work, but really not the designs derived from it -- which could be indefensible in a court of law.    No one can lay claim to a beaded starfish.  So, working a starfish from a design that was printed, might be unethical if claimed to be an original idea or concept, but it's *not* illegal.  And, I don't think anyone would argue that ethics and law have anything to do with each other in our present legal system. (Justice?'>?'>?'>? yeah, right.)

In that case, a simple statement "A variation of a design originated (or proposed) by So and So in Such and Such" is all you'd need to say or do to gain a clear conscience.

But the main issue is, you can't reprint the book or magazine, or make copies of it to bypass the author's right to make money on it, but anything you make from it can be sold, and reworked, and used as you see fit -- commercially or not.  They are your works based on the copyrighted description.  Unless the original "idea" or "concept" was patentable, or the image you are imitating was a Trademark (like Disney characters, the classic example) your reproduction of the item is not protected.

This falls under Civil law, and the rules are far different than criminal.  Each court, each jurisdiction , and even each case may have features or aspects that require or elicit different decisions.

This is greyed somewhat, if the instructions you are following are not "sold" to you, but "licensed".  If you buy a license to make one copy, then you are, in effect, entering a contract of sorts that might be interpreted differently.  You don't license magazines or books.  You buy and OWN them.  You don't license their content, you OWN that physical copy of it.

The skinny is, in most cases it's ok to try to claim blanket or broad sweeping rights (as long as you don't actually make illegal claims as to your actual rights), and conversely, it's ok to take what you've seen in a magazine or how-to, and make it.  (How many people make things they've seen a celebrity wearing -- and don't think twice about the copyright issues???)   The only time there will be a problem, is if the person who thinks they own it, decides to spend the money to see if they really do own it, and attempts to take legal action against you.  Cease and desist letters mean nothing -- unless the person who sent it is actually going to take you to court -- and that will only happen if there is real money involved, they have real rights that are being abused (eg: Trademarks or Patents) or if they can prove you really did violate their copyright by making illegal copies of the patterns or book.

You may not like it -- you may feel violated to see "your design" in other areas, but that is life.  It's not illegal.   Each time the design is reworked, it's an original.  The "likeness" is much harder to prove for copyright -- you can prove it for Trademark (eg: that looks like Bugs Bunny or Mickey Mouse).

And, let me give you this final remark. What if your "original" idea was worn by a celebrity, or published in a book, and someone else said "I MADE THAT LAST YEAR!"  ??  Who "owns" that idea?   I don't want to argue this point, only point out that in a finite/closed system, duplication is inevitable.  Which is why getting a patent takes so long and is so expensive -- and you have to prove no "prior art".   How can anything strung or woven really claim that?

[WriteBrainedWoman]

Wow,  thanks for posting a very extensive and well-explained addition to this discussion. It sounds like you've dealt with copyright/trademark/patent issues for a long time. It was nice of you to share your knowledge and experience with us.

I laughed when I saw your comment about making statements "to gain a clear conscience." We try hard to be sensitive to intellectual property, and have printed such statements on occasion, just to be safe!  

Melissa

[pugdog]

Hi,

Thanks.  This is an issue near and dear to my heart, and I see so much misinformation, or half-truths out there, and a *lot* of confused people looking for answers.

I'm not sure if I gave any, but I have seen people who have had no problem copying the magazine for a friend, say "I can't make that design for you, it's copyrighted."

I think part of the problem is that it IS civil law, so that there are no clear-cut, always true decisions.  Context of the act always has to be taken into account.  People see widely varying decisions, and don't see ALL aspects of it, only the issues they are specifically looking for.  

Some venues, have had recent discussions, where the only voices that were giving information were silenced, or ignored.  Everyone wanted to "belive" (I guess) that their fantasy (the medicolegal definition of "fantasy") about copyright was the right one.  eg: the lawyer(s) who posted was(were) blown off, but the artists claiming they "knew" the facts were idolized.  Wishful thinking, but not law, or factual.

You laughed at the "clear conscience" statement, but I thought the funniest part was the ethics/law statement  

In a way they go together.   Many of the arguments people have are based on their version of ethics or clear conscience, but law is a mix of things with "clear conscience" being the least of the issues.  As people, we would like to believe that the 10 Commandments were really enough to live by, but "creative sinners" have required libraries full of commentary on those 10 simple rules, so that as "members of society" we had to create laws, legal systems, and such.

I'll never forget the lawyer who when asked by his client who had just been convicted of something he had been assured he wouldn't have been, "What now?"  The lawyer responded.  "I'm going to lunch.  You're going to jail." and walked away.

Anyway... I'm glad you found something in this, and I hope it does help others to look at what is COPYRIGHT, TRADEMARK, and PATENT, and to keep their own "Ethics" in play along with the letter/spirit of the law -- but not to confuse the two.

Robert S. Pataki, MD
President, PUGDOG Enterprises, Inc.

PS:  If you are interested in Criminal Copyright violations, take a look at this DOJ pages:

(this is really, really interesting)
http://www.usdoj.gov/usao....850.htm

http://www.usdoj.gov/usao....851.htm

It helps to differentiate purpose, "gain" and other issues people talk about.

(edited because the links didn't link)

[Luann Udell]

I'm learning more and more I don't want to know about copyright law lately!  '>   I thought I was more knowledgeable than most people, and due to 3 separate on-line discussions of it lately, I'm finding I don't know anything at all anymore....

It seems to boil down to you could make something that looks exactly like something you saw in a book (and you'd be ethical if you acknowledged it, but not breaking the law if you didn't) but if you cut out that picture and used it to make a collage, you've broken the law.  (sigh....)

Thanks Dr. Pataki for your insightful post on the subject.  
Luann

[pugdog]

Quote

It seems to boil down to you could make something that looks exactly like something you saw in a book (and you'd be ethical if you acknowledged it, but not breaking the law if you didn't) but if you cut out that picture and used it to make a collage, you've broken the law

Very simply put, but does get to the heart of the matter.

But, if we are getting *technical* here, you *might* have broken Copyright Law '> -- but maybe not, since it does allow collage -- and since you are using the EXACT printed copy, you are not *copying" it.  If you made a copy of the picture you cut out, or altered it (eg enlarged or changed color) *then* you'd perhaps be breaking copyright law (but not for certain).  Remember, Parody and Satire ARE allowed under the law.  And, if you own a copy of the magazine you enlarged, it might fall under "fair use" since one copy of your one copy, etc.  (gets sort of weird here).

But, if you then made copies of the artwork, eg: collage, you *might* be breaking copyright law, depending on the specific circumstances.  So, while collage is protected, as original works, making COPIES of it, such as for posters, or greeting cards, may not be.  But, reprinting photos of it for editorial, or informational (news) purposes, would (almost certainly) be.

In your example, I would phrase it more like:

Quote

It seems to boil down to you could make something that looks exactly like something you saw in a book (and you'd be ethical if you acknowledged it, but not breaking the law if you didn't) but if you copy the printed instructions from the magazine and give them to a friend, you've broken the copyright law