08 March, 2010

Infringing or not?

On Sunday we went out to one of our favourite events - the monthly Coatesville markets. It's such a fun, relaxed market full of great food, produce and crafts. We haven't been since before Christmas and I noticed a real upswing in the number of stalls selling handmade softies. Actually I should say Softies with a capital S because I'd say 75-80% of them come directly from patterns published in the books Softies and More Softies by Viking Australia and Softies by Therese Laskey, plus a couple from Melly and Me patterns. Seriously. So what does one do in these cases?

I had a really good search through my two Softies books and couldn't find anything about copyright or selling items made from those patterns which seems unusual - does that make them fair game? Would seem to. I don't know about the Laskey or Melly and Me patterns, though I'd be surprised if they didn't have some sort of restriction. So there I am at the markets on a beautiful sunny day, my daughter falling in love with the beautiful stuffed toys - and they were lovely - and not able to enjoy the wonderfulness because I knew where those patterns had come from and I don't feel they should be selling them. But on the other hand it's just nice to see decent toys available at extremely reasonable prices (possibly too reasonable actually). Sigh. Moral conflict sucks. There used to be a woman there selling some toys from those books and I wasn't sure if I should say anything at that point, but now she seems to be selling more her own stuff and there's these new stalls with the knock-offs. I'm so not the kind of person to confront them over that, and hey, maybe it's actually legal if there's no disclaimer in the book? So what do you do? Look the other way? Blab to the market organisers? Tell the authors? How would they enforce sellers at an out-of-the-way country market? Buy them and save myself the trouble of making them? Or end up buying a legit pattern for a Melly and Me giraffe because your daughter and her friend just about wet themselves over the ones for sale? Well in the immediate future probably the latter, but the other options are still there...

ETA: it seems I might have been talking out my ear on this one (legally speaking if not ethically), read what Marielle has to say in the comments).


  1. I don't know what to say, I kind of feel like it's a pattern, you know, people will make stuff from them, and in these economic times people will try and sell them. And then there are loads of people who would NEVER IN A MILLION years think if actually making them so there's a ready market. I agree we shouldn't copy other people's patterns and then sell the pattern, but I've never really thought too thoroughly about the morals of selling what you make from the pattern. Um, I don't want to be a baddy, and I'll stand corrected, but you know, isn't that what patterns are for?? Ugh, please, please don't hate me.

  2. It's a legal minefield! I've seen arguments for and against it, but what it
    seems to come down to is that if you are specifically prohibited from
    selling items made from someone else's pattern then you are breaking the
    law. I suppose you could have, and people do have more and more, huge
    debates about the ethics of knocking off a pattern, making minor changes,
    and selling the results. And the whole area of how do you copyright a look
    or a way of putting in an ear or a ribbon. But whatever side of the debate
    you come down on, it does remain that there are certain legal restrictions
    placed on patterns that are potentially enforceable to the point where you
    can be sued. Big companies do it all the time and theoretically individuals
    can and do - there have been some good examples recently of big companies
    stealing ideas, or Etsy sellers being outed selling product they've copied
    from someone else. If you're selling stuff then I think you probably do
    need to think very hard about it, even if you feel you are selling your own
    creations. If you read Chez Beeber Bebe you know she got nailed by Taggies
    recently for trying to sell a stuffed toy (one!) with ribbon tags sewn on to
    it that she'd designed because they have copyrighted that technique. It's
    total bullying but the fact remains that they can at least try it on. I'm
    sure that in my case, if I contacted the authors of the patterns and they
    were so inclined, they could stop the stall-holders from selling those toys
    and possibly demand recompense from them. Ok so now I sound like some
    law-and-order freak on this topic which I'm not! To me it's more of a
    personal ethical dilemma and one one which I'm not entirely sure where I
    stand. I don't sell toys or items so I don't have to worry about it from a
    legal standpoint, but what if I take an idea I saw at the market, like some
    fabulous appliqued pillows, and make exactly the same ones for me and my
    friends - is that ethical? I'm depriving someone of money in payment for a
    really great idea. Can you own ideas? Can you copyright techniques? I dunno.

  3. Here is a discussion on clothing copyright

    I think even with patents, you only have to change the design by about 10% for it to be considered legal??? Not sure where I heard that, but fi so, they would only need to change the shapr of an ear or a leg or something and it would not be considered infringement?

  4. Actually in the US it's perfectly legal to sell goods made from a pattern even when the designer has "restriction". Pattern copyright in the US applies to reproduction of the pattern not the end good. The end product is not a reproduction of the pattern - a photocopy would be a reproduction of the pattern. Here's some great reading as I'm loathe to see the when people add to the letter of the law.


  5. That's really interesting as it implies that all the debate going on in the
    crafting community is completely pointless. I know I've read many arguments
    coming from both sides of the debate and frankly I haven't come across a
    definitive answer. This author sounds like they know what they're talking
    about and they make a good argument (to my admittedly non-legal mind) but
    there are plenty of other experts out there who disagree with them! It might
    be interesting to take a case to court to test all this but unless you've
    got deep pockets who can afford to? It's all very well to advise people that
    they're legally in the clear, it's another thing to have a big corporation
    or publisher coming after you threatening an expensive lawsuit because
    you've crossed a line. And god forbid you infringe on a really popular
    blogger because then you're _really_ in hot water! :))

  6. I agree that the masses will come foaming at the mouth and with pitchforks to harass anyone who dares to "copy" someone without becoming familiar with the letter of the law. If you explore the tabberone site you'll see pages like this:


    Where they point out the quiet behavior of some of the major designers who would set the trend of pattern copyright. Also I believe the web site owner has gone up against some big wigs including Disney and come out the victor.

    I think you're right that case law will set precedent but I think some of it has been set if the flapping gums in the crafting community will cease to try and stop all discussion as if it were heresy. I'm glad you've brought up the topic.

  7. I've read heaps of stuff on some of the bigger blogs about this recently, I just wish I could remember where! Perhaps there's actually two sides to this - the actual legal side and the moral/ethical side. If Tabberone is right about the legal side then it opens up a very interesting debate on the ethical side of things to say the least. I mean, copying is frowned upon ethically and that's reinforced by people's belief that it's also illegal. But take away that illegality and woah. Very very interesting! I noticed that Skinny La Minx is referenced on the 'licenced fabric' page as someone who has removed restrictions and I've noticed that Amy Butler also seems to have dropped the restrictions she used to have on her fabrics about selling items made from it. It would be really good to have some sort of universal clarity on this topic in the crafting community as it seems awfully confused at the moment as to who is right about the copyright laws - they don't seem to be tested very often in practice.

  8. I think it's less about the legality and more about how designers have historically added to the letter of the law via "for home use only" statements on mass produced items, selvages of licensed fabric and now in the discussion of indie patterns. I think empowering ourselves as crafters is important so now one erroneously publishes a pattern thinking they'll be protected by something that isn't there. I've seen that a lot by the way in the indiecrafter community as well as in the beloved pet circles of some favored designers. Some who feel it would be okay to apply the existing copyright law to those big baddies at the Big 3 but heaven forbid we not protect Indie Crafter A because she's such a nice person and one of us (even thought she's been benefiting by the legal aspect of selling her pattern and has legal help to have notified her of her rights before publication).

    I may seem a bit passionate in this topic but it's only because I think keeping people in the dark perpetuates a mafia mentality and does not encourage creativity.

  9. Wow that came out garbled huh? Late night typing here. Distilled: I think it's best to understand and apply the law clearly across the board because without it we lose credibility.

  10. Just to play devil's advocate for a moment though - you say that it stifles
    creativity, but conversely couldn't freeing things up also stifle it? I can
    see that people would stop creating new things because there would be
    nothing to stop someone from directly copying said item and also selling it,
    thus denying the originator income.

  11. "I don't sell toys or items so I don't have to worry about it from a
    legal standpoint, but what if I take an idea I saw at the market, like some
    fabulous appliqued pillows, and make exactly the same ones for me and my
    friends - is that ethical?"

    Ugh, I KNOW! I feel the same way. But again, how many ways are there to make a skirt, or a bunny, or a blouse before you inevitably copy someone? I often wonder the same thing about recipes. I mean, spaghetti is spaghetti, right? But I digress.

    For myself, I get so caught up in checking others for inspiration... it really helps me creatively and I must admit to never having created anything without at least a little "input" from another source. My feeling on the matter for myself personally (and again, I do not sell things I make) is that as long as I do not feel guilty for it, it's fair game. I trust my moral compass on this one after my post on the stuffed owlie I made (you commented on that, but I've since taken it down because I felt SO bad about it -- good news is that the gal who makes the owlies sells the pattern now so I bought it along with a little peace of mind, phew!!), but I too would like to know the legalities on this.

  12. See I'm not wanting to free things up. I just think that the law has been misquoted and misused. I think the designers either have been getting poor legal advice (giving them the benefit of the doubt), not getting legal advice at all or knowing the extent of the law been adding to it in their own interest.

    I want the law to be applied in its current interpretation which offers designers the same rights that authors have - protection against reproduction of their work which is a pattern. The end product is not the designer's product and woe is the designer who publishes without understanding that. I know many a talented designer who will not publish patterns because they understand this.

    I really doubt people will stop creating. Some will stop yet others will come up and fill the gap and this time armed with a full understanding of their rights as pattern designers (which is quite different than product makers). I'm of the mind that we're almost afraid in this community to offend the current pattern makers by stating the truth as if they will leave and leave a vacuum of patterns. Not so. I think you're already beginning to see less books with restrictive pattern comments because even the big guys are aware of this.

  13. I have a similar compass I think :) I've made a couple things where I've
    blatantly gotten the idea from another blogger and while I'm ok with doing
    that, I don't blog it because I think that's tacky. Maybe I would if I
    thought they'd never ever find out, but again, that's a bit rude and of
    course other readers would recognise it anyways which would make me look
    bad. I certainly notice other people copying patterns and ideas so why
    wouldn't those who read my blog. Keeps me honest I think! But I'm much
    harder on myself than I am on others, it doesn't bother me unduly what
    people copy as long as they're honest about inspiration if it's really
    obvious! And yeah, how many ways are there to put in a zipper, but sometimes
    you just know you've stolen the idea lock stock and smoking barrel and it
    seems only right not to do that and make a buck from it. You should make
    money from your original thoughts, even if it's only the fabled 10%!

  14. You said it much better than I would have - after my last comment I was
    mulling it over in my mind and decided that there might be a period of angst
    for designers and people who sell patterns but eventually there would be a
    group who incorporated the actual law into their business model and who
    figure out how to make the most money from just the pattern and any other
    associated products they can rather than people whose business model doesn't
    allow for selling of the end product and who naturally get upset. In the
    case of fabric, I can see that actually accepting that people will use your
    fabric to make things to sell on probably increases your market as other
    people seek to use it in the same way. It's more a matter of how they think
    about the product than how it gets used in practice even now. In the case
    of the Melly and Me giraffes, I'm going to get a pattern to make my own so I
    suppose it's a little like free advertising - though I think in fairness the
    seller should at least acknowledge the designer. I might ask them about it
    next time we're at the market, just see what they say ;)

  15. Quite true - giving public credit to the designer when selling your goods is definitely a proper thing to do. There will always be a market of people who even knowing about a pattern will choose to buy a finished product. I think those who don't give credit, fear that people will copy their ideas (oh the irony! LOL) but really when you're stingy with your creativity, you reap what you sow.

    I count generous bloggers (like those listed in my reader including you) as the real grease behind the creative wheel that contributes to innovation.

  16. that's some crazy stuff right there. whew! I could barely keep up with your conversation. :0 I have often wondered about selling stuff from books I own (yes, they don't have any statement saying you can't). And also I don't see much wrong with making finished items and giving credit to the designer. It would be really interesting if some of the bigger bloggers would sort of start a larger discussion on this topic!!

  17. Oh what a bun-fight that would be! It seems to raise high emotions in the
    discussions I've seen so far. But I'm pretty sure there have been a few big
    discussions that I've read but I'm darned if I can remember in which blogs
    other than that it would have been 6 months + at least ago. I'd also like
    to know where taking an idea off the internet, copying it exactly and
    selling it comes in - does putting a picture on the internet, which I know
    technically counts as publishing - mean that it's a "pattern" which can be
    on-sold? Can bloggers warn people off using their photos if they've put
    them on their blog in the first place? Oh so many questions! Most, if not
    all, completely academic to me personally, but still interesting.

  18. Thank you for the nice compliment :) I sort of figure that since I'm not
    hugely innovative and that because I get so many ideas from reading a
    million blogs I should give back at least a small amount of what I get.
    Maybe I'm a bit hard on myself but I always feel like if I was truly
    innovative ideas would spontaneously generate in my mind or something. I
    guess we don't see the thought processes of people who seem to generate
    things completely out of the blue, they'd probably say they acquired ideas
    from various places by osmosis too.

  19. what i don't get is, don't they feel kinda stink that they aren't 'one-off's' or originals? i would blush standing behind a stall selling things I hadn't designed myself. :-D making them is fun, giving them away is fun... selling them i feel is just wierd... :-D

  20. Well I sort of wonder if they feel that no-one would realise what they were.
    I mean, I was surprised to see the stuff because I always assume that I'm
    the only person in NZ with those books. Aside from you of course! There is
    that isolated mind-set here which is silly because of course we all have
    access to Amazon and Fishpond and Borders does sometimes carry these kinds
    of books. Or else they just don't care. I'd feel the same as you for sure,
    but lots of people wouldn't - I mean look at all the people with fake Gucci
    bags wandering around thinking they look good!

  21. Really interesting discussion...and reason for it. The law in NZ is quite different in that there is the assertion of moral rights, as well as the ability to restrict use for anything you sell that contains copyright - ie. the *you may not sell things you make from this pattern* type clauses. Generally speaking, unless there is such a restriction, there shouldn't be any problem selling what someone has made from a pattern/book/whatever, though for that I'm working on the assumption that the seller is attributing the design to the author, other wise it's passing off.

    Passing off - the concept of passing off another's creations as your own, which for the most part seems to cover the market stallholder issue. And yes, it really irks me on an ethical level (and a legal one!!!) In many cases, there is no restriction for a sewist to sell goods made to a pattern that has been found in a bought pattern/ pattern book *unless the book asserts a fair use or restriction clause* which is basically a *please don't sell your creations for profit without appropriate reference to it being the author's work* type of clause etc. It is enforceable law here (NZ), but again, case law's the key here, and that requires knowledge (esp on the part of the author that p.o is happening) as well as really deep pockets.

    I can't speak to the US situation - I was current on it last about 8 years ago, and I daresay heaps has shifted thereabouts.
    totally apart from the law though, I have the same dilemmas as you - I'm not a confrontational type, and seeing this does leave a bad taste. Then again, I've been on the receiving end a bit as well, so that does colour things as well...

  22. same sort of woes with the comfort dolls... the pattern and idea was done by a lady years ago specific to Icross Canada charity and they've shared it with me to do what i do with bands and the dolls, but i see the exact same dolls/pattern on line for sale and i too cringe and wonder.

  23. That's soooo interesting! If I read this correctly then NZ law actually
    gives sellers the rights that people only think they have in the States? I
    think my brain is starting to hurt :) Makes me all the more glad I don't
    sell anything!

  24. If you read the comments on the NZ law it seems as though we're a bit
    different than the US here and that kind of copying may be covered where
    it's not in the US. Well the sale of the pattern certainly is but not the
    actual dolls. I bet though, for a charity, it's not worth pursuing that kind
    of thing much. Wonder where Canada sits?

  25. hmmmm - my tired brain can't take all that legal chit chat in....
    I do sell things I've made with my own patterns. I never ever open the patterns in any of my crafting books, as I feel that I don't want to even vaguely copy it in the slightest tiny way. But that's me - I feel that someone spent a long time writing and refining the pattern, which means that even though I paid them for the book, should I earn money by copying their exact pattern. But I do look at the pictures - in craft books, and on blogs, flickr, etc - and take inspiration from that. I do try to be careful that the inspiration isn't an exact copy, but then if I come up with my own pattern based on the original inspiration I know that it will be mixed with other influences and ideas as well.
    I don't think I could do an exact copy even if I wanted to! I never stick to the recipes in a cooking book....

    I remember when Amy Karol's (Angry Chicken) first book came out she said that people could sell things made from her patterns, but to please acknowledge that it was made from her pattern. I think that's the decent thing to do, if you are using someone's pattern.

    But then again - it is a big wide world out there. Blog land. There is so much out there, for sure people are using patterns they've found for free, and making money from it. I don't know the legalities of any of it - seems to be pretty muddy waters, hey? But I do guess, ethically it is up to us crafters to keep supporting each other. Perhaps you could say to the market sellers, oh so casually - how lovely their softie is, and mention you've got that same pattern book at home.... Perhaps?

    Also - I think, Jacqui, that you should blog about the things you've made directly based (copied?) on other people's online things. As long as you link back to the original source. A lot of people love to see people making things they've put out there - and also it is a good way to show off the original designer who you so obviously loved. Really - copying and influence is the best form of flattery (of course, of course - copying when money is involved is not nice at all!).

    Just my babbled two cents worth.

    I would love to visit that craft market with you Jacqui, so sorry I didn't make it this time. I'm already working out how I can save enough $ to get the whole family over for a holiday sometime in the not too distant future..... {Which means I have to go and get writing on my own original patterns, so I won't have any copied designed in my collections!! HA}.

    love E xxxxx

  26. I'm from Australia where 'Melly and Me' are from and I've been to a talk they have conducted at a craft show and they specifically said they are happy for their patterns to be sold by people making them from home. Just thought I'd share this since they were mentioned. I think they may mention this on their website.



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