Appendix: Copyright Issues and Knitting Design
–by Carolyn D’Agostino
Carolyn D’Agostino is a practicing attorney, weaver, spinner, knitter and mother of three. Her post on copyright has appeared at various times on several knitting and spinning email lists on the Internet. The following material was written by Carolyn and graciously provided by her for inclusion in this document. This is not legal advice. Should you require legal assistance, please contact an attorney in your community.
What is copyright?
Section 106 of the Copyright Law of 1976 provides the owner of a copyright with the following exclusive rights:
- to reproduce the copyrighted work;
- to prepare derivative works based upon the copyrighted work (a derivative work is a work which is based upon one or more preexisting works, more about these below);
- to distribute copies. . .of the copyrighted work to the public by sale, lease, rental;
- to perform the work (not really relevant here);
- to display the work publicly.
It should be noted further that the owner of a copyright is presumed to have retained all of the above rights, unless they have been expressly waived. This means that I need not spell out the above in my copyright notice or in any agreements I may make with others. However, if the copyright holder specifically spells out such rights, it may later help her prove that the infringement was willful. This may result in more punitive penalties, and perhaps even criminal prosecution to the offender.
The above rights, however, are not without limitation and lead us to the next question:
What is protected by copyright?
Courts have always recognized that there will be new forms of expression that will be within the purview of the copyright laws even though they may not have been contemplated in the legislation. Accordingly, the question of what is copyrightable seeks to address certain characteristics of the work, which may or may not place it within the realm of the statute. Courts generally draw distinctions between “ideas,” which cannot be owned, and “expression” which can. Thus, if I have the “idea” of a knitted, felted dinosaur, I cannot prevent others from similarly having that idea. If I express my idea in a particular fashion, I can obtain copyright protection of that expression –purple, eight inches high, with yellow spots, etc.– but I cannot prevent others from making their own knitted dinosaurs using their own expression. Thus, to be copyrightable, the idea must be original to me and expressed in a tangible form (i.e. it is not just in my head, but I have made the thing, or written down the instructions).
Okay, so I have made a purple dinosaur with yellow spots, which resembles a brontosaurus. My friend decides that knitted dinosaurs are a great idea, and she goes ahead and knits and fulls a dinosaur, based on my dinosaur, but hers is a different color and size. Has she infringed upon my copyright in the expressed work? Her dinosaur, if it was based on mine and did not occur independently from mine, would be regarded as a “derivative” work. A copyright owner does not have protection in a derivative work if it contains a “substantial, not merely trivial, originality.” (See, Latman, The Copyright Law, p.25). As with most everything in the law, this is a question of fact and degree. How much has she deviated from my dinosaur? You can see that derivative works are a fertile source of litigation.
The variation must be significant. Reproducing the work in another medium (My friend paints an exact likeness of my knitted, fulled dinosaur and plans to sell them as greeting cards, she crochets hers rather than knits an identical replica, etc., she makes a more technically proficient dinosaur than mine) will generally not be enough to get her independent protection.
If, however, the differences in her dinosaur are significant –perceptible to the casual observer, as one court put it– then she would obtain protection, for her variation only.
This may also apply to designs from other sources. I take a design from Barbara Walker for a knitted castle. I place it within a larger overall design — a baby blanket with a number of different squares arranged in a particular manner. Barbara may still have copyright protection for her castle, but my variation is also protected, to the extent that it departs from the original. I can’t prevent others from making their own variations on the original castle in the book.
Other Non-copyrightable Material:
Systems or Processes:
These may be patentable (way beyond the scope of discussion here) but they are not copyrightable. Recipes, for example, are not copyrightable. I do not have ownership of my pasta fagiole recipe, no matter how good it is, no matter how original it is. If I put it into a cookbook, and arrange the ingredients on the page, and write the directions in a certain manner, with a touching story of how it came to me from my grandmother, those aspects of the recipe may be protected, but the actual process itself cannot.
Similarly, the process of shaping a neckline, turning a heel, sewing in a set in sleeve, cannot be protected. I can write out detailed instructions for any of the above, and my written expression, as it appears in its tangible form can be protected. But, even if my method for turning a heel is completely unique in the world of knitting, and has never before been seen by anyone, I can’t prevent others from using it, teaching it, writing their own instructions out for how to do it, etc.
Short Phrases, Titles or Slogans
Slogans may be trademark protected (also way outside the scope of this discussion) but a title is generally thought to represent too small a portion of the overall work to be protected in its own right. I believe there are two “Enchanted Forest” sweaters out there, neither is guilty of infringement, solely because the title is the same.