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If you’ve ever purchased a pattern from an indie designer, you may have encountered wording like this in the copyright notice:

This pattern is for personal and non-profit use only. You may not sell an item made from this pattern.

This stern-sounding language usually appears at the end of the pattern, often in small type or a footnote. You may see variations on what is restricted (one of my knitting colleagues specifically tells purchasers it’s permissible to make items to sell at a craft show) or you might notice legalese that tries to make the restriction sound more conclusive (“Purchasing this pattern constitutes agreement with these terms”). But is this restrictive language valid, and can it be enforced against the purchaser of a craft-related pattern?

Refresher Course

Since many makers and purchasers view restrictive clauses as an outgrowth of copyright law, let’s start by reviewing some copyright basics.

Copyright is a set of legal protections granted to the creator of an original work in a tangible form. Copyright law gives the copyright holder the exclusive right to sell, give away or license their work. If someone other than the copyright holder tries to distribute the work, the copyright holder has the right to sue that person and collect damages (assuming certain things are proven in court).

There’s no doubt that copyright law applies to crafting patterns (as long as they’re original works and provided in a tangible form, like a PDF or in print). There’s also no doubt that the copyright law entitles the owner of a pattern to control how their pattern is distributed — who can sell it, where they can sell it and for how long. The copyright holder has the right to decide whether to post the pattern as a free download on their website and still retain the right to prevent others from giving it away or selling it. They have the right to bring legal action against someone else who copies and sells or gives away their copyrighted pattern without permission.

No cupcakes for you!

We said that copyright protection clearly applies to a pattern itself — meaning the written-out language of the pattern and any accompanying photos and charts. But the protection that the designer gets under copyright law only protects the designer’s right to control how their pattern is distributed. Nothing in the statute extends that protection to include an actual item that was made by using the pattern.

Think about the author of a cupcake cookbook with a provision in the back that states: “These cupcakes cannot be made for use in a bake sale.” Copyright law protects the cookbook itself from being copied by other people without the author’s permission, and it gives the author the right to sue if someone scans the book and sells the PDF without permission. But it is hard to imagine how copyright law could give the author the right to tell purchasers what to do with cupcakes made by using the recipes in the book. The cookbook itself is copyright protected; the resulting cupcakes are not.

It’s tough to find court cases that have addressed this precise issue (probably because most indie designers and/or pattern purchasers don’t have the resources to wage lengthy litigation). We do, however, have one very old Supreme Court case that’s relevant. Baker v. Selden, 101 U.S. 99 (1879) involved a man who invented a particular method of bookkeeping using lined paper with specific columns and headings. Selden set out his method in several books on which he held copyright. He later sued Baker, who wrote another book, which explained Selden’s method and offered a somewhat different version of the ruled paper. Selden argued that Baker’s book (and version of the special, lined paper) violated his copyright.

The Supreme Court rejected Selden’s claims. The court held that there was a difference between the copyright held on the book itself, and the right to prevent someone from using the procedure explained in the book. Only a patent could protect the exclusive right to control use of the bookkeeping method described in the book.

The Supreme Court gave several examples to illustrate why such restrictions are untenable: “Take the case of medicines. Certain mixtures are found to be of great value in the healing art. If the discoverer writes and publishes a book on the subject (as regular physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he gives that to the public,” the Supreme Court wrote. “If he desires to acquire such exclusive right, he must obtain a patent for the mixture as a new art, manufacture, or composition of matter. He may copyright his book if he pleases, but that only secures to him the exclusive right of printing and publishing his book. So of all other inventions or discoveries.”

The court went on to say that, “the very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book.”

Given the language of Baker v. Selden, it’s hard to imagine a court deciding that copyright law gives people who publish instructions for how to make things — quilts, sewn skirts, knitted hats, etc. — the right to tell the pattern purchaser what they can or cannot do with the finished project.

Fashion Rules

What about fashion? The media often reports lawsuits brought by big-name fashion designers seeking to stop others from making knock-offs of their garments, so why can’t a small designer claim the same kind of protection?

While it’s true that clothing design gets an extra bit of copyright protection, it’s also true that this protection is very limited. One long-standing principle of U.S. copyright law is that its protection doesn’t apply to a utilitarian object: “Designs for useful articles, such as vehicular bodies, wearing apparel, household appliances and the like are not protected by copyright. However the design of the useful article is subject to copyright protection to the degree that its pictorial, graphic or sculptural features can be identified as existing independently of the utilitarian object in which they are embodied.”

When it comes to clothing, it is very difficult to successfully claim that a garment, even a hand-crocheted or knit one, is not utilitarian. One of the main purposes of clothing is useful: to cover and protect the body. Sweaters have been around for centuries, and before sweaters, many similar garments were created that do the same utilitarian thing: cover the top half of the body and keep it warm. Therefore, you can’t claim that the essential shape or function of a sweater (i.e., crafting a garment with a hole at the top for a human head and two tubes attached to the sides for arms) is copyrightable. (Keep in mind that here we are talking about the actual sweater itself — not the written-out pattern that tells how to knit it.)

In certain cases, a garment may have some “pictorial, graphic or sculptural features” that are distinctive enough, and separate enough from the utilitarian uses of a sweater, to qualify for copyright protection. Imagine one of Alice Starmore’s beautifully complex Fair Isle sweater patterns or an intarsia floral motif on a sweater by Sasha Kagan. These motifs and colors may well be unique enough to be identified outside of their use as the front or back of a sweater, and therefore are protected themselves. In contrast, a plain, solid-colored crewneck sweater would not have such distinctive elements and would not, without more, qualify for copyright protection. Exactly what kinds of design features are enough to qualify for independent copyright protection is a complicated issue, with very fact-specific court decisions going every which way about exactly what makes something distinctive enough or not. (The issues are complicated by trademark law when big-name designers are involved; trademark protection prevents others from using brand names and logos in a misleading way.)

All of that boils down to two conclusions: Patterns in written or PDF form — at least the text and images in their tangible form — are copyrightable and protected, but a useful item like clothing is not (although severable and distinct design elements may or may not be).

But wait: There’s more

One thing that is truly awesome about the law is its ability to apply various legal theories to the same set of facts. Since copyright law is unlikely to provide a basis for enforcing the type of restrictive language we’re discussing, we need to consider other legal theories and the obvious candidate is contract law.

Whenever you buy or sell something, you’ve technically created a contract. I agree to give you $9.99 and you agree to give me a quilting pattern in return:

That transaction is a legal contract. Generally speaking, the parties to a contract are free to impose conditions as part of their deal. You may say, “I will only sell to people who pay me in cash.” If I don’t have cash, you can say, “No sale.” Payment in cash is a therefore a requirement or condition of the contract.

Contracts often have unwritten conditions built in to them. For example, a condition of pretty much every sale is that payment must be made using a valid method (no counterfeit money or stolen credit cards). Some contracts also contain lengthy provisions in written-out form. (Remember the last time you bought a car? Loads of contractual provisions were spelled out in paragraph after paragraph of the sales contract.) Following this logic, a pattern designer might take the position that a pre-condition of the sale of their pattern is the purchaser’s agreement only to make items for personal use.

There are a couple of problems with this argument, however. Foremost is one of clarity and fairness. Most of the time in the crafting world, the purchaser is not told of the precondition before they actually buys the pattern. If the restrictive language only appears at the bottom of the actual pattern — the pattern they cannot read until they purchase it — then how can a court say that the purchaser freely agreed to this condition, a condition they didn’t know existed before forking over the purchase price? Other legal arguments may come into play, further eroding the potential validity of this kind of restrictive language.

One way to try to address this objection is for a designer to change the way they sell their patterns. If there’s any hope of getting a court to enforce restrictive pattern language, the restriction must be clearly communicated to the purchaser before the sale. Because we have no case law to guide us, it’s not clear what form this notice would take: Is putting the restrictive language in the description of the pattern enough? Would it require a special pop-up window that displays the restriction and requires the purchaser to check “I agree” before the sale proceeds? Taking such steps would provide the designer/seller with a better argument, but it’s impossible to definitively say that this would be enough to satisfy a reviewing court.

I have a great deal of sympathy for designers who have valid concerns about being ripped off by large manufacturers looking to mass produce an indie designer’s work. (It’s a very real concern: In the knitting world, Scottish designer Kate Davies wrangled with a large clothing manufacturer about the alleged infringement of her delightful owl yoke sweater, eventually reaching a compromise.) But the law isn’t based on sympathy, and it’s very difficult to see how copyright law alone could give a designer the right to enforce “for personal use only” restrictions.

Contract law might provide a better theory for enforcement, but even there, it’s questionable, especially since courts interpreting copyright law are frequently hesitant to allow claimants to bootstrap additional rights beyond the limits of copyright law. Courts also may be reluctant to validate these provisions given public policy concerns: the long-standing hesitance to place burdens on the sale of goods and free commerce, hostility toward contracts of adhesion (i.e. “take it or leave it” contracts), reluctance to take on the administrative burden of deciding such cases, and so on.

So, as we find all too often in the law, the answer is unclear. Until an actual case comes before a court somewhere (an unlikely prospect, since indie crafters don’t often spend buckets of money litigating against their customers), we may never know for sure. Sometimes the law is a cruel master, indeed.

Important note: This article does not constitute legal advice and is offered for informational purposes only. If you have any questions about your individual situation, please obtain advice from a competent intellectual property attorney who is licensed in the appropriate jurisdiction

Carol Sulcoski

Carol Sulcoski

contributor

Carol is a former attorney who left the practice of law when her oldest child was born. She learned to knit as a child, and returned to the craft as an adult. Today she juggles several roles in the knitting industry as designer, writer, handdyer and teacher. Carol lives outside Philadelphia with her husband, their three children and a pet bunny rabbit, Charcoal.

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