There was quite a lot of discussion about copyright issues in the comments to my knitted cushion piece; this is an important enough subject that it deserves its own blog posting. Obligatory disclaimer here.
The issue was whether a knitting pattern can be copyrighted. I believe that the complete pattern with all the words can be copyrighted in the same way as all my other postings are copyrighted. If it’s original content that I created, and I haven’t assigned the copyright to anyone else, then I have the copyright. So the main question is, can the straightforward description of the stitches
(i.e., the “k1, p1” bit) be copyrighted? Mark claims it can’t, because you can’t copyright the design and stitches
. A related issue is whether you can impose licensing conditions on someone making the article described in the pattern (in the case of the cushion I designed, giving attribution).
Traditionally knitting has been about people making variations on known ideas. Elizabeth Zimmerman, one of the knitting gurus, used the word “unvented” to describe techniques that she discovered. She was convinced that someone else had probably discovered the technique long ago, but not written it down, so what she was doing was re-inventing, or “unventing”. She also encouraged people to make variations on patterns, to make things their own. However, there are the legal aspects of copyright to consider. In the US, a knitting pattern falls under the Visual Arts category for copyright as long as it follows the basic rules. Copyright protects “original works of authorship” that are fixed in a tangible form of expression. In the UK, I assume knitting patterns would fall under the written work category, as it includes instruction manuals (a knitting pattern is arguably an instruction manual). For Canadian law, it’s easier to refer to the web site written by an IPR lawyer. From there I read Section 5(1) of the Copyright Act specifies that copyright subsists in every “original” literary, dramatic, musical and artistic work. So my cushion pattern, since it is original in that sense, does have copyright protection. Including the arrangement of the stitches (or the basic “k1, p1” stuff). The stitch patterns on their own, the modules that I built the cushion pattern out of, which are traditional, aren’t copyrighted, of course. It’s my arrangement of them to form the cushion pattern that is.
The other question is what conditions I can impose on someone who wants to copy the pattern, or make articles from it. In my pattern, I specifically said people shouldn’t copy the pattern, but should link to it instead. And that they can use the pattern to make articles, even for sale, as long as they give me attribution for the pattern. Most free knitting patterns contain the condition that the person not make the article for sale, but I decided I didn’t object to that.
From all my reading, it’s perfectly allowable (note I’m not saying anything about the moral aspects here) to impose such conditions on anyone wishing to copy the pattern or use it to make a cushion. You should not simply assume that because you have permission to make a copy of the sweater or afghan by following the pattern, you also have permission to deal with that work in any way, for example by selling what you made.
In the knitting industry, it’s very common for people to say that the resulting article may not be sold, and this is basically a contract that the knitter agrees to in using the pattern.
In fact, the industry norm is that items made from any pattern that the knitter buys or downloads (even free patterns) may only be made for the knitter or as gifts. So in the absence of a copyright notice on the pattern, it could be argued that those would be the implied conditions of use. This is not universally accepted; here’s the starting point to one long discussion I read where this point was argued back and forth. I note, however, that even the person arguing that the knitted articles should be able to be sold also argued that credit should be given to the designer.
References
http://www.copyright.gov/circs/circ1.pdf
http://www.copyright.gov/register/va-examples.html
http://www.ipo.gov.uk/copy
http://www.girlfromauntie.com/copyright/
http://knitty.com/ISSUEfall03/FEATcopyright.html
http://community.livejournal.com/knitting/8179698.html
Disclaimer
I am not a lawyer, I don’t know any lawyers personally who deal with the issue of copyright in knitting, and thus although I have read quite a lot about the subject, any detailed questions you may have should be taken to someone who is properly qualified. And all of this legal stuff does vary with the country/state/province you live in. Most of my reading has been based on Canadian and US law; the laws in other countries may vary considerably. I do hope that people who know more about the subject than I do will comment.
{ 12 } Comments
I think that even though the page you point to is from the U.S. Copyright Office, the claim that knitting patterns are visual works results from a confusion with sewing patterns, which are clearly visual works and appear in the same line as if they were the same thing.
So I believe (IANAL, TINLA) that knitting and crocheting patterns are textual works. Whether they are really copyrightable, or fall under the idea/expression merger, is another question that I don’t have an opinion on.
John, a lot of knitting patterns use schematics of various forms (a diagram of the sizes of the finished pieces and/or charts of the stitches using symbols) so that may be why the copyright office put knitting patterns in the visual arts category. Or maybe they were thinking of the finished product, which (I gather) can be copyrighted separately if it’s sufficiently original (one name in knitting where I, speaking as an amateur in the subject, would think this could apply would be Kaffe Fassett’s work, for example).
Ideas clearly are not copyrightable.
My interest in the copyright question is, for knitting, bounded by the requirements for publishing patterns I design.
I meant to add that Tabberone (google for them) has been suing BigCopyrightCos for getting eBay to cancel her auctions. She makes stuff out of licensed fabric (cloth with Mickey on it or whatever) and then sells them. BigCopyrightCos don’t like this, but they wind up settling after they discover they are dealing with a rhinoceros.
Yes, I’ve read about some of those fabric-use cases. I have mixed feelings about the whole “copyright the pattern” thing; in my case all I want is attribution if someone uses my work, not to stop them using it. I intend on publishing more patterns as I finish them; the cushion was just the first, so figuring out some of the issues early on in the process seemed to be a good idea.
I’m not a lawyer, but I have worked in publishing as an editor. My understanding is that knitting patterns are like food recipes: you can’t copyright the actual design (or dish), but you can copyright a particular write-up of the design (or dish). This may explain why garter-stitch scarves appear in various knitting books and why so many cookbooks have versions of vinegar-and-baking-soda chocolate cakes.
As far as I know, you can copyright some particularly independent interesting designs (which is not what I claim for my designs) but otherwise, you’re right, it’s the written-down version of the pattern that can be copyrighted. And of course, you can’t copyright the original stitch patterns that are combined to form the final design either, so the copyright is restricted to the whole of the final design.
I was told that you only have to change 6% of a pattern to claim it as your own pattern? Do you have any info on this? If you use a pattern but changed it dramatically from the other, can you claim it as your own. In other words, don’ have to get into copyright with the other person. Any help.
@Lang: my understanding is that there is no magic proportion that you should change; I’ve heard figures such as 10% or 15%, but also read that it doesn’t matter how much you change, the original copyright still applies. OTOH, my understanding is that you cannot copyright the idea of a pattern (unless it’s so different it’s effectively a work of art). So if you see an idea, and then create a pattern yourself using that idea, then you would own the copyright. There are probably lots of grey areas in there for which lawyers would be required to give opinions valid in any given jurisdiction.
Quoting from 17 USC 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.”
I think that knitting patterns (i.e. not write-ups of patterns but the string of knits, purls, etc.) fall quite neatly under the category “procedure,” and therefore cannot be copyrighted. This is also why recipes can’t be copyrighted, and I think the question of whether the finished work can be copyrighted is analogous to the question of whether a particular dish (as distinct from the recipe that generated it) can be copyrighted. That is to say, it can’t
These lawyers agree with me: http://www.avvo.com/legal-answers/knitting-pattern-copyright-108115.html
Scott: the issue is really one of licensing rather than copyright — if you use a pattern that someone has written, are you obliged to follow the licensing terms on that pattern? I don’t know if it’s been tested in court (and it’s certainly hotly discussed on sites such as Ravelry). If the terms are clear up front before you get the pattern, then I think you’re at least morally bound to follow reasonable terms.
Interesting issues on knitting and crocheting instructions. Amazingly enough, I could not find any cases on Fastcase, but I bet it’s because who is going to pay for litigation over hand knitting at $10,000 to 20,000 per month even for a simple copyright case? no one. it’s probably not even an issue.
some lawyers have argued instructions can’t be copyrighted because they’re templates and templates can’t be copyrighted.
recipes can’t be copyrighted.
if you want to “play safe” there are tons and tons of vintage patterns out there you can change, refashion and get a new copyright in and publish a book. are the individual instructions copyrightable? i don’t think so, but maybe someone can convince a US District Court Judge of that.
So far, NSL far as I can tell, so the official position has to be, don’t worry about it. Who cares.
All the people (mostly women) out there that are hoping for some kind of copyright rights into their creations, go for it, but I think if you copyright a crochet instruction, you’re probably wasting $50 at the copyright office.
“A pattern can be a template, or set of templates, for manufacturing an item, be it a birdhouse or a dress. Templates are not copyrightable. A pattern can also be drawings accompanied by instructions for knitting, crocheting or quilting. A method or procedure is not copyrightable. While the drawings themselves could possibly qualify for copyright protection, the actual instructions are not copyrightable. The only other aspect of patterns that could possibly qualify for copyright protection would be the artwork and that would only be if its intrinsic properties allowed it to be separable from the design, which very, very few designs can do. And to be enforced in federal court a copyright almost always must be registered with the US Copyright Office.”
http://www.tabberone.com/Trademarks/CopyrightLaw/Patterns.shtml
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