Thursday, 29 January 2015

Can you sell items made from crochet patterns? Know the FACTS!

Oh, the endless debate to this question "can I sell items made from crochet patterns, without the designers permission?"

The short answer is... well there isn't a short answer. Some designers would have you say NO! and some crocheters would have you say YES! What I can say is that the law does fall in favour of the designer, however much people want to ignore this fact, and it certainly isn't about pushy designers having their own way.

So here are some FACTS when dealing with copyright law, taken from the International Berne Convention of which the US, the UK and many other countries are a member of.

So what is the Berne Convention?
The Berne Convention is for the protection of Literary and Artistic Works, and so will apply to crochet patterns/designs and was adopted in 1886 as an international agreement to protect the rights of authors who are nationals of the countries who are members of the convention. You can find the full list of country members here.

So what rights are protected?
An author or designer from any of these countries within the convention is awarded the same rights, of which cannot be carried out without permission, and these include;

  • The exclusive right to reproduce the work, (though some provisions are made under national laws which typically allow limited private and educational use without infringement).
  • The right to authorise translations of the work
  • The right to authorise public performance or broadcast, and the communication of broadcasts and public performances
  • The right to authorise arrangements or other types of adaptation to the work
  • Recitation of the work, (or of a translation of the work)
  • The exclusive right to adapt or alter the work
An author or designer from any of these countries within the convention is also awarded moral rights, of which include;
  • The author has the right to claim authorship
  • The right to object to any treatment of the work which would be ‘prejudicial to his honour or reputation
The last point is an interesting one, because those who argue that their own copyright laws are different, and can do what they like with finished items made from a designer's work, may fall fowl of this moral right. Reproducing work from a design and reproducing it, in what the designer may consider, low quality may have a case that their reputation has been damaged.

MYTHS

There are many myths that circulate the internet from those who wish to profit from designers work, and argue that they can do so regardless but these are often warped viewpoints from wishful thinking, a few of which are;

Everything on the internet is in the 'public domain' and thus free to use.

No, this is a common misunderstanding. A work only falls into the public domain when the copyright expires, typically many years after the author's death. While work published on the Internet may be publicly accessible, it is certainly not in the public domain.

Anything without a copyright notice is not protected

Copyright will apply whether there is a copyright notice or not. In the US, a notice was required to retain copyright on works published before January 1st 1978, but this was the exception not the norm, and is certainly no longer the case. Also, once the US signed up to the Berne convention, US law was amended, and the use of copyright notices became optional on work published from March 1st 1989

Having said this, it is still certainly worth placing a copyright notice on your work. A copyright notice reminds others that copyright exists, and may therefore help to deter infringement, which is to the benefit of the crocheter to not face legal action.

If I change someone else’s work I can claim it as my own

This is restricted. Any adaptation will be legally regarded as a derived work; so if you simply adapt the work of others, it will still be their work, and they have every right to object if publish such a work when they have not given you permission to do so. They are also entitled to reclaim any money you make from selling their work.

So the advice is always to create something unique and original, it can still be inspired by the original work, or seek permission from the rights owner however this may incur a fee or royalties.

I can legally copy 10% without it being infringement

No. Unless it is explicitly allowed under fair use or fair dealing rules, any unauthorised use of copyright work can potentially lead to legal action.


It’s OK to use copy or publish other peoples work if I don't make any money out of it

You may be surprised to know that again, no you cannot except in specific circumstances permitted under fair dealing/fair use rules. Any copying or publication without the consent of the copyright owner is an infringement, and you could face legal action and a claim for damages to reclaim lost revenue and royalties.

It’s hard to prove copyright infringement (so I'll be ok)

This is not the case, copyright law is principally civil not criminal law. Civil law requires a lower burden of proof, actually making it easier to prove infringement. In a criminal case, the defendant is innocent until proven guilty beyond any reasonable doubt. However, in a civil case, the plaintiff must simply convince the court or tribunal that their claim is valid, and that on balance of probability it is likely that the defendant is guilty.

Final points

Ultimately it will come down to the individual circumstances between the plaintiff (the designer) and the guilty party, and the final decision of the judge's rule, and even then many copyright infringements are settled out of court, but it is always advisable to err on the side of caution when reproducing a creator's original work without permission in ANY form.

Some will still argue that creating an item made from a pattern is different and they can do what they like with it, but you may want to check a designer's terms and conditions before setting up shop, as you will have accepted the designer's terms, thus creating an agreement either by registering on their website or simply by downloading it, and even then you still also may fall fowl, like I said before, of being accused of having the designer's honour or reputation impacted, and all it takes is a good lawyer!

So what are HappyBerry's copryight Terms and Conditions

I'm fairly easy going even after reciting all this information, (mainly because I'm sick of the ignorance that circulates the internet). All of my patterns are copyrighted (obviously) and may not be reproduced in any form, including written or via video format without prior permission, but items made from any of my patterns, unless otherwise stated, can be sold in your own stores however. This applies to individuals only and not companies however.

This information has been taken from the UK Copyright Service.

3 comments:

  1. In the USA copyright only applies to the written instructions, photographs, diagrams, when dealing with textiles - clothing, crochet, knit, and so on. Techniques and ideas aren't covered - like a crochet stitch, even if you come up with a new one, it's not copyright protected. There was a Supreme Court case (baker v selden 1879) about a woman selling dresses made from a pattern designers pattern without permission - the court ruled that the woman COULD sell the dresses & the designers copy right did not extend to articles made with the pattern, that to have that kind of protection one must apply for a patent (they don't give those on patterns here in the US by the way). This has been the legal precedence since in the USA, rulings from the 20s 30s and 70s all backed that case up. Copyright doesn't extend to articles made from a pattern - they can be sold without permission or license from the designer in the US.

    We do have a thing called design patents, but those are for new and nonobvious ornamental designs of functional items they take 10-12 months or longer to secure and no has used them for crochet/knit patterns that I know of. It's a fashion industry thing. And no, it is not automatic protection, it is a long involved process and must fit certain requirements (pretty sure most crochet/knit patterns don't qualify for) and very few have been granted - even to big name fashion designers (very hard to get, pretty much impossible for an indie designer :/).

    Copyright isn't a "grey" area here (designers just like to tell themselves that to feel better), it's pretty much only useful for the pattern itself. We have nothing else beyond that. We did have some laws that were being discussed but they were never passed & they would have been just as useful as design patents are (HA!!).

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    1. Hello squishypenguin, thank you for your comment.

      In reference to your points, yes stitches (and subsequently ideas and stitch patterns are not copyrighted. What will be copyrighted is the method that those stitches have been put together, just like notes are made into music really.

      With regards to selling items without a licence or permission, you could face a legal battle on the grounds of a designer's honour or reputation being impacted which is stated above, but if you have any further queries or points you can contact the UK Copyright Service where the above information has been taken from, and they are an organisation that has taken up the role of providing a centre for intellectual property registration in the UK, and they provide ‘secure, affordable and effective independent evidence of copyright ownership’ in their words, so if you have any questions or queries relating to this information above then you can always contact them directly for more clarification if you require it.

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  2. Hi!
    I just wanted to ask your consent for selling some of your designs as me and my parents are hoping to start a small Facebook page, selling Jams, Crochet pieces ect. As we are not an official company but not just and individual, I thought it best to ask your consent just in case.
    (Im young and not very good at writing, sorry if it's bad)
    I hope a can use your beautiful designs! ;)

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