an investigation to discover if the THE SALE OF GARMENTS MADE FROM PATTERNS WITHOUT PERMISSION IS ILLEGAL
INTRODUCTION
i’ve been looking at various discussions on the internet, after a facebook group called “pdf patterns sales and promotion” was encouraging group members to illegally copy patterns on the basis of what is written on http://www.tabberone.com/Trademarks/CopyrightLaw/Patterns.shtml. You can see immediately without reading anything that this is an amateur site, due to profanities, tacky gifs and pictures of cats!
the group on the one hand is moaning that there aren’t enough pdf patterns and in the same breath gloating about abusing copyright and bullying designers who wish to protect their copyright and livelihoods!
there are various offensive, pugnacious, bullying and sneary characters within the group, who literally had me in tears and i left, but i decided to look into it further and get the facts right for myself.
THIS IS A WIP – I have emailed information@ipo.gov.uk to clarify if i have this correct,
as i understand it, thus far:
The creator of the design owns any rights in it, except where the work was commissioned or created during the course of employment, in which case the rights belong to the employer or party that commissioned the work.
In both the UK AND USA CLOTHING DOCUMENTS ARE AUTOMATICALLY COVERED BY COPYRIGHT from the moment they are put onto paper. This includes sewing patterns.
In both the UK AND USA CLOTHING DESIGNS ARE AUTOMATICALLY COVERED BY DESIGN RIGHTS from the moment they are put onto paper. Design is the appearance of a product, in particular, the shape, texture, colour, materials used, contours and ornamentation. To qualify as a new design, the overall impression should be different from any existing design. There is one big difference however, in the UK the whole of the garment is covered. In the USA only the aesthetic elements are covered and not the actual garment!
Designs made in the UK are covered by UK law, and selling them in the USA does not exempt them from UK copyright laws. (CHECKING WITH IPO)
UK
Designs may be subject to three types of protection,
- copyright is for the protection of documents detailing the design as well as any artistic or literary work incorporated within the finished product. Usually your copyrighted work will be protected abroad automatically in the same way that it is protected in the UK. (www.ipo.gov.uk)
- unregistered design rights are used to prevent unauthorised copying of an original design. Design rights can also be bought, sold or licensed in a similar manner to copyright. Design rights exist independently of copyright, areautomatic and are treated in the similar manner as copyright.
- registered designs – prolongs the cover to 25 years – register with the UK Copyright Service in the same manner as copyright work in order to establish proof of the date and content of the work. This protection would only be available in countries or territories where the application was made. Registering your design in the UK does not protect it abroad. (www.ipo.gov.uk)
In the UK rights the duration is 10 years from the end of the calendar year in which the design was first made into a marketable product. The original date the design was first fixed in a tangible form is also taken into account, and the duration should not exceed 15 years from the end of the calendar year in which the design was first recorded. The UK 10 year duration is split into two 5 year periods: Exclusive rights are retained for the first 5 years, but during the last 5 years other parties are allowed to apply for licenses to the design (for which the owner may claim royalties).
Within the European Community, unregistered design rights lasts for 3 years from the point the design is first disclosed or made available to the public in some manner.
For UK designers, both the UK and EC rights can exist at the same time.
What constitutes an infringement? An unregistered design is only infringed by copying. Independently created designs are not infringements. You have the right to take civil court action against infringement of a design right.
USA
Copyright in a work that portrays clothing only covers the portrayal. It does not extend to the article that is portrayed. For example, a drawing or photograph of a dress design may be copyrighted, but that does not give the artist or photographer the exclusive right to make clothing of the same design.
Copyright is a form of protection provided by US law to authors of “original works of authorship,” including “pictorial, graphic, and sculptural works.” The owner of copyright in a work has the exclusive right to make copies, prepare DIRIVITIVE works, sell or distribute copies, and display the work publicly. Anyone else wishing to use the work in these ways must have the permission of the author or someone who has derived rights through the author.
The pattern is copyrighted. You cut the pattern out of fabric and sew it together. You area WEARING an EXACT COPY of the copyrighted paper pattern, only in fabric, not in paper. Clearly a derivative work.
Clothing is an example of a “useful article”
Copyright in the USA does not protect the utilitarian aspects of such works of craftsmanship. It may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus a useful article may have both copyrightable and uncopyrightable features. For example, an embroidery on a t-shirt could be protected by copyright, but the t-shirt itself could not.
Copyright protects: commercial prints, labels, artwork applied to clothing, collages, dolls, toys, drawings, paintings, fabric, floor, and wall-covering designs, computer artwork, needlework and craft kits, patterns for sewing, knitting, crochet, needlework, photographs, photomontages, stencils, cut-outs, technical and mechanical drawings, diagrams , weaving designs, lace designs, tapestries.
Copyright protection for an original work of authorship does not extend to ideas, concepts, discoveries, principles, formulas, processes, systems, methods, procedures, words or short phrases, such as names, titles, and slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering, or coloring
In the US designs may be registered as part of the standard patent system via the United States Patent and Trademark Office, where they are treated as ‘design patents’, (as opposed to ‘utility patents’).
International copyright law – The Berne Convention
copyright law will vary between nation states however, the copyright law of the country where copyright is claimed shall be applied (wiki) the designer is awarded the same rights in all other countries that are signatories to the Convention as they allow their own nationals, as well as any rights granted by the Convention.
Intellectual property rights applies to designers who are nationals of the countries listed below, or when the works are made from the countries below (persons who are not nationals, but which have their habitual residence in a country of the Union, will be regarded as a national of the country).
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SUMMARY
Whist the garment is an just an idea, it is not protected. The second it gets put onto paper it is protected. However, the design sketch or flat is only protected as an artwork and anyone can still make garments of that design. Once the pattern has been made it is protected as a document which must not be copied. Once the garment has been made up, the design itself (colour choices etc) must not be copied (but in USA they may copy the useful elements).
You must have permission to create a pattern or a garment that derives from a pattern not made by yourself.
Permission is needed: to copy a sewing pattern, to copy the design elements, such as fabric, colour etc.
A garment is a derivative work of a pattern and must not be made up without permission either.
MAKING A PATTERN FROM SOMEONE ELSE’S DESIGN SKETCH WITHOUT PERMISSION IS LEGAL.
THE SALE OF GARMENTS MADE FROM PATTERNS MADE IN THE UK WITHOUT PERMISSION IS ILLEGAL.
THE SALE OF GARMENTS MADE only from the useful elements of PATTERNS MADE IN THE USA WITHOUT PERMISSION IS LEGAL.
THE SALE OF GARMENTS MADE INCLUDING the design elements of PATTERNS MADE IN THE USA WITHOUT PERMISSION IS ILLEGAL.
dawn hocknell 