illustration by Alicia Traveria
Crafting a Business with Jenny Hart
Copyright, patent … protect?
By Jenny Hart
Published: April 9th, 2008 | 11:40am
Hi Jenny,
I've been making a go at self-publishing my knit and crochet patterns. I love inspiring crafters to make my designs, and some of them would like to be able to sell the projects. Is there a way I can permit indie crafters to sell the work based on my designs on Etsy and at craft fairs — while still prohibiting commercial use by sweatshops? Is it worth it to work out licensing as a small business?
Thanks!
MK
Short answer: Yes.
There are different ways you can express that agreement to make sure it communicates your values and restrictions. This is assuming you can copyright your designs (meaning, you have the legal right to do so) and are ready and willing to police the use and activity of your patterns. Sounds fun, right? Riiight … Especially when there seems to be so much confusion among hand-makers as to why these restrictions often extend to them. It can be viewed as an unnecessary or overzealous protection of copyright and might cause bad blood where you don’t want it: among your fans and customers. Hey, they’re only making 10 or so pieces and selling them at the indie craft market, so how can that really hurt the designer? I’ll tell you how. But first, let me say …
I’ve kinda dreaded writing this column. Copyright is an extremely complex issue that tends to get folks all riled up. I’m no expert, and I’m not a lawyer. And while we’d all like to think a copyright symbol works like an immunity amulet that will magically cause would-be copycats to flee before ever trying anything funny, there’s no guarantee in that. Copyright may stop someone from re-creating your work once they’ve started, but it won’t necessarily prevent them from doing so.
I also have to say that my column is not legal advice intended to replace the counsel of a qualified lawyer. I’m just sharing what I’ve gleaned about copyright from spending years consulting with lawyers about my own work. I hope that what I share here will be helpful and informative to those dealing with these issues. Online debates tend to get a little off track, with many voices tackling issues they aren’t informed about, which doesn’t help anyone. I hope I can offer some tidbits related to copyright that will answer broader questions and point others in the right direction to educate themselves about copyright restrictions and how understanding them and respecting them strengthens and supports the designers of the DIY community.
The way that I choose to enforce copyright of my works through my company will serve as examples here, but it does not represent a one-size-fits-all approach to protecting your works. Copyright debate crosses a wide spectrum of media with vastly different considerations applying to each. Artists and designers have choices and rights about who they permit to redistribute their work and how. There are also different types of registering of works: Patents and trademarks are different terms of usage that apply to different types of works. But we’ll look at a tiny piece of copyright that is relevant to the DIY community and the piece I understand the best: original craft designs intended for personal use.
I make my living from the images I draw and then manufacture as embroidery patterns. The artwork is copyright-protected so that the images cannot be reproduced for re-sale without my permission and are intended for only personal use only. I decree it so! It’s my choice. The law gives me the right to do that. My company’s model is hobby patterns for crafters, not free art for commercial re-sale and other businesses. But, hey, that’s just me. You can forge your own model of what you permit.
So, back to MK’s question about bothering to license to hand-makers, which is a question I also faced. Why not let all crafters make and re-sell to their hearts’ content but still be able to avoid sweatshop-made repros? We all know hand-makers aren’t evil. We can feel good about supporting them, so why get all stingy on them and require something like a licensing agreement? Huh?
There are excellent reasons for doing so. And it’s very important that crafters and indie businesses understand what they are, so they can play their part in supporting the designers and businesses that give them the goods we love and adore. Here goes…
1. Copyright is a use-it-or-lose-it thing. You have to actively express and enforce your copyright in order for it to mean anything. If you let your designs be reproduced hither and yon for resale without ever attempting to control it, the law will not allow you to wield that control in a pick-and-choose fashion. This is why restrictions have to extend to everyone or no one at all. If you want to control who can and cannot reproduce your work, you will need to grant them permission in the form of a licensing agreement. But why? Because …
2. The law does not distinguish between small producers making five pieces for re-sale and manufacturers making 500. So, if you want to be able to stop a large manufacturer who has used your design as a template for their product, you'll have to prove that you've established a precedent of enforcing your copyright — which will probably mean among hand-makers wanting to sell at markets. This is why I extend easy-apply licensing agreements so that I don’t have to just tell hand-makers flat out that it’s not allowed. That would make me reeeal popular. I want to help hand-makers looking to earn extra money by selling what they make, but they have to help me too. I have to enforce my copyright in that way, or I lose my legal right to do so when and if a giant manufacturer does the same thing.
The role that the hand-maker plays as potential re-seller has not really been addressed in the DIY community. It’s not because designers are worried the hand-maker is going to become wildly rich from the designer’s work; it’s that they are creating other problems for the designer. Hand-makers who do not observe copyright pose the following problems:
• Penalties against themselves for infringement. Example: What if you stitched Nike logos on your purses and attempted to sell them?
• Weakening of the designer’s copyright by exposing the designer’s work to third-party infringers. Example: A corporate designer or scout sees a hand-maker’s reproduction of a designer’s work for sale at an indie market and lifts the idea, not knowing where it came from and not seeing it with proper copyright notice displayed.
This, dear makers, is a very real concern. Scouts increasingly are attending our markets, looking for ideas and designs. If you are selling goods of another designer’s work without permission or without giving them credit, you may unwittingly be the reason they end up getting ripped off by a large manufacturer. We know you didn’t mean to. This is why independent designers depend on you, as a responsible member of the DIY community, to help protect their copyright.
So, as a designer, does that mean you should call in the lawyers when you see your designs appearing online without permission or credit? Not necessarily. Oftentimes, someone is just a fan who is unknowingly offering up your designs without understanding the ramifications of doing so. This has happened to my company numerous times over the years, and these makers receive personal contact first, making sure they are aware of our copyright and licensing policies. This is the best approach to start with. We have never had a problem after doing so and signing them up, keeping it kosher and making sure they credit the work (but that doesn’t mean you can just credit the work and go ahead with it. An approved agreement is required).
Q: But what if it’s apparent that the company is a sizeable manufacturer, maybe distributing to retailers?
A: You’ll want to consult with your lawyer first. Do not contact the company ripping you off with an angry e-mail. Obtain examples of the product. See if you can find a record of the company ordering or buying your product from you. Register your works if you haven’t already. Go to your lawyer and let them assess the situation and explain to you the process and steps you can take to stop them. There are very real reasons for going this route that having nothing to do with being mean and nasty — they have to do with proper filing of papers and pre-emptive steps that you’ll want to take to successfully halt manufacture and avoid tipping a company off so they take their own steps, making it harder for you to pursue them.
Q: I bought the pattern, so I own it and can do whatever I want with it, right?
A: When you buy a pattern, you do not acquire the rights to it at the same time. This would be called “Transfer of Rights” and it doesn’t happen when you buy something in the same way that you don’t acquire the rights to music by purchasing the album.
Q: When I knitted or crocheted someone’s design, I altered the original design. I made it unique and now it’s my own.
A: These are called “Derivative Works” (derived from another work), and they may be protected too. It’s understood that you are going to alter the original design in some way, with colors, combinations, and maybe fabric choices. Your “new design,” relied on the platform of the kit, patterns, or template, so it may not be considered yours from a legal, commercially resalable standpoint. It’s yours for personal enjoyment and the uniqueness of how you executed it but not necessarily as a new, copyrightable work. Afterall, if you’re looking to see how little you can deviate from an original design as a basis for your own work as a designer, is that really where you want to be coming from creatively?
Things are different now. Times are changing in exciting and unchartered ways. People are making things with their own hands more than ever and finding ways to sell them more easily. To be supportive, responsible members of the DIY community, we all need to take responsibility for educating ourselves and one another, or we will be our own undoing, creating an atmosphere where the very thing we oppose (uncontrolled mass manufacture of our designs under unethical conditions) will be brought about by our own hands.
I regard the DIY community as one with a unique air of mutual support for its small businesses, where being savvy and respectful about copyright is just one of the ways we can keep that our hallmark.
This is just a smidge of a conversation about copyright and does not address music, film, one-time executed works of art, recipes, and so on. If you have a design, product idea, or anything you want to put out there and protect, consult a lawyer (did I say that already?) and educate thyself.
GOOD EDUCATIONAL STARTING PLACES
• Web site: Copyright For Crafters
• Article: Mary Engelbreit Article on Protecting Works
• Sublime Stitching Licensing Program
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This is the sixth installment of Jenny Hart’s “Crafting a Business” column. Send your questions to askjenny [at] sublimestitching.com. View additional "Crafting a Business" columns here.
Issue #24
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