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These questions bring up some of the most common - and most confusing - issues involving copyright and quilting. There are all sorts of postings and articles on the Internet that talk about these questions, but I have yet to find a definitive answer. So, I turned to Google Answers to see if I could get some help.
I'm posting the answers I received, with my comments in italics. Since I'm not a lawyer, and I am NOT giving any legal advice, the best thing to do in this case is to discuss the situation with a lawyer. Again, I am not giving legal advice - this article contains opinions not expressed by Chuck Smith, QuiltingBusiness.com, or Gruntled Enterprises. So, enough of covering my backside.... on to the answers.
Here is the "gist"of the answers I received from Google (I am paraphrasing in my own words). To see the complete answers, please go to:
Question: Can you sell quilts made from fabric that you purchase when most fabric designs are copyrighted?
Answer: The first question is the hardest among the two and there are different interpretations among the side of the fabric makers and crafters (like the quilters) as regards to this issue. Just like in any legal matter, nothing is absolute and not everything is black and white since there will always be exceptions in different cases.
This first link goes to an article by eBay Power Sellers Michael Meadors and Karen Dudnikov. They have successfully defended themselves against a number of different lawsuits brought by companies that have licensed their assets for use on fabrics. Mr. Meadors and Ms. Dudnikov have sold items made with licensed fabrics on eBay, and when push came to shove, the licensors have backed off.
What this means is that there is precedent for creating a quilt from fabric with licensed images or designs on them, and offereing them for sale. This seems to come under the "First Sale Doctrine" which is part of the current United States Copyright Law. Basically, the First Sale Doctrine states that when a manufacturer of a copyrighted item releases that item into the stream of commerce, the original owner of the copyright loses control of what happens to that particular item.
To read the complete article, please go to:
Copyrighted Fabrics By: Michael M. & Karen D., eBay's Tabberone
One of the arguments that big companies use to scare quilters and crafters is to refer to these hand-crafted items as unauthorized or unlicensed products. But, this argument is part of trademark law, not copyright law. But, since they are large companies, many quilters are too scared to go up against the big companies and don't use the fabric.
There is a federal court case that directly addresses the use of copyrighted fabric. The case, from 1997, involved Precious Moments vs. a company called La Infantil. The only federal court case directly addressing the use of copyrighted fabric is Precious Moments v. La Infantil, 1997, 1st District. Precious Moments lost in its attempt to stop La Infantil from making bedding from licensed fabrics. We have been in federal court with M&M/Mars, Disney, Major League Baseball, United Media (Peanuts) over the use of licensed fabrics. Every one of them objected to the making and sale of fabric items. Everyone one of them wanted to settle after being sued.
Here is a copy of the sole federal court case of copyrighted fabric by Moments v. La Infantil. Basically, in this decision, the court denied the copyright claim by Precious Moments, but did make La Infantil change the tags on their products to clearly show that Precious Moments was the owner of the copyrighted image (but La Infantil was allowed to continue to sell the products with the modification to the tags). The official document is here:
MOMENTS, INC., Plaintiff, v. LA INFANTIL, INC., et al., Defendants.
Civil No. 97-1635 (PG). July 29, 1997.
So in a sense, the crafter did not totally won since the latter was still ordered to modify the tags included with the products to properly cite that the plaintiff was the owner of the copyright for the fabric.
My take on this issue: You can sell quilts made from licensed fabric, and it fits into the First Sale Doctrine under copyright law. You can probably expect some grief from some of the bigger companies, but use the resources at www.TabberOne.com and you should be OK. Again, this is NOT a legal opinion, nor am I giving legal advice.
Question: Can you sell a quilt made from a copyrighted pattern? And if so, what are the restrictions and rules that would apply?
The case here seems to be a little more cut and dried. The quick answer is "No, you may not sell quilts made from a copyrighted pattern." Here are a couple of resources that go into a great deal of detail about some of the issues:
Facts for Crafters & Quilters" by Sylvia Landman
"Copyright & Quilters: a FAQ & Links"
The reason is that in the case of a qult pattern, the pattern itself is unavoidably copied and reproduced in the finished product - when you look at the finished quilt, you see a copy of the pattern you created the quilt from. In addition, most quilt pattern copyright holders will put in restrictions on use, so as "for personal use only" or other limiters. This is perfectly legal, and means you cannot sell the finished quilt.
But, there may be a way to sell a quilt from a copyrighted pattern. Basically, you need to ask the owner of the copyright if you can sell the quilt. You may have to come up with some kind of profit-sharing plan, but it never hurts to ask.
take on this issue: It's better not to try to sell a quilt made from
a copyrighted pattern unless you have permission from the copyright holder.
Instead, use public domain patterns or come up with your own patterns.
I know this makes things more difficult, but in the end, a lot safer.
I know this article may not be the most helpful I've posted, but at least you'll be exposed to a few new information resources to continue your hunt. Again, I'm not trying to give legal advice, and I'm not an attorney. Please consult a licensed attorney if you do have any questions about quilting and copyright.
If you have any questions about your quilting business - whether just starting out or looking for a boost with some solid marketing or business advice - feel free to send me an email at firstname.lastname@example.org.
Chuck Smith is the owner of QuiltingBusiness.com, the web's only site dedicated to helping you make money with your quilting. Visit QuiltingBusiness.com today to sign up for the FREE email mini-course: "7 Unique Ways to Make Money with Your Quilting."
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