This is by far the thorniest issue facing knitters and other craftspeople. Designers must realize that garments such as hats, mittens, sweaters, coats, even when exquisitely made, of the finest, most unique materials, are not copyrightable. However, law states that such utilitarian items shall be entitled to protection “if, and to the extent that, such design incorporates a pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” What does this mean in the knitting context? It may mean that much of what people regard as copyright protected, may enjoy limited protection. Clothing is almost never considered anything but a utilitarian article.
My knitted dinosaur, however, is not a utilitarian article, as it could be regarded as a soft sculpture. There may be aspects of the clothing, which, if they could be separately identified (i.e. I put my purple dinosaur on a sweater done in intarsia) and can exist independently of the garment (I can take a representation of that dinosaur and put it on a hat, a poster, a t-shirt, etc.), the representation of the dinosaur, not the dinosaur sweater itself, is copyrightable. In similar fashion, if I take a number of traditional Aran or Guernsey motifs and arrange them in a certain fashion in a sweater or other garment, and also add other aspects of design to the garment (neckline, button details, overall shape etc.), these modifications clearly serve to separately identify the work.
But, you say, what about the pattern for the dinosaur sweater? Does this mean that I can reproduce it, word for word, leaving out the dinosaur chart, but otherwise replicating the written instructions. Probably not. The written instructions, arranged according to my own original expression, can be protected, in the same manner as my recipe for pasta fagiole, when it is expressed and arranged in a cookbook. This is why many companies can offer patterns for basic stockinette stitch sweaters, all of which may be very similar in appearance. One cannot own the exclusive right to make or display or even sell a stockinette stitch sweater, but if I express the idea in a written pattern, I own the pattern, as written and can protect, not necessarily the sweater — but the written expression, and any other severable design elements capable of existing in their own right (the purple dinosaur).
For example, I wish to design a mitten. I open up the book “Homespun, Handknit” and see a mitten, for an adult, done in honeycomb stitch. Honeycomb stitch, by itself, is not copyright protected as it appears in many stitch dictionaries. It’s probably going to be regarded as something in the public domain, or perhaps a process. I can use this stitch in my own design, even in another mitten, notwithstanding the fact that another knitter has published a mitten pattern, in honeycomb stitch, and has a copyright interest in that pattern. No one owns the right to put a stitch into a mitten or sweater, no one owns the right to make a red mitten or a blue one, etc.
So, I decide I like the use of honeycomb stitch in a mitten. I go ahead and make a child’s mitten in honeycomb stitch. I make it in different colors, I may use different yarn. I write up my instructions in a different manner than the books, casting on a different number, orienting and arranging it in a different way. I then post my pattern to one of the online knitting lists, or I send it into a magazine and it is published. Is my pattern protected? Yes. Have I violated the original knitter’s copyright? No, in all probability. Why? The first mitten, in honeycomb stitch , is a utilitarian item. Yes, it’s lovely, it’s original, it’s well-made. It’s a garment! I can’t own the exclusive rights to make mittens! What can be severed from the mitten and exist independently? Honeycomb stitch? No. This stitch is in the public domain, or it could be regarded as a process, or at the very least, a “de minimis” (legalese for small and insignificant) aspect of the design which cannot exist independently of the mitten itself.
It is not the original mitten, or my new version, that is capable of copyright protection, because there is no design element in this type of a mitten that can exist independent of the mitten. If I put a unique design on my mittens, that can be taken off the mitten and exist independently, or used in another media, (back to the purple dinosaur) then that design element, and that element alone, is protected. The written instructions for the original “Homespun, Handknit” mittens are protected, however, if I write out my design for the child’s mitten, and the only thing that is the same is the stitch, I have, at the most, created a significantly different derivative work, and I have not broken the law. Even if I make another adult mitten, using honeycomb stitch, and write up an entirely different set of directions, I have not broken the law. Unless there is something so unique about the mitten that it can be taken off and exist independently, and it is my opinion that honeycomb stitch alone does not meet this test, I have not infringed on a copyright if I happen to use the same stitch as someone else.