Intellectual property infringement

[Stitchonomy]

I have seen many cross stitch pattern shops that sell patterns based on trademarked figures and copyrighted artwork. These patterns clog up generic searches and negatively affect the visibility of shops that sell original patterns.

This thread is intended to collect information about trademark and copyright rules, public domain, commercial liscenses etc. etc. as well as to outline what our rights as sellers are in terms of the original patterns we make. What kind of copyright we have on our patterns? How can we take action if someone infringes on our copyright?

I am not an IP lawyer, or any lawyer for that matter, but if anyone has reliable sources of information on these topics please post them here!

[Former_Member]

Copyright vs. Trade

I did a little reading on copyrights and trademarks and here are the basics:

COPYRIGHT:
- The purpose of a copyright is to protect an original creative finished piece of art work (such as a song, a book, a painting, a photograph, etc.).
- A copyright’s is in effect for the life of the author or creator plus 70 years after which it becomes public domain. (This year works from authors who died before 1945 are now public domain)
- A creative work does not need to be officially registered to be copywritten, but without being registered it is difficult to make a case in court if someone else steals your work.

TRADEMARK
- The purpose of a trademark is to protect a name, phrase, symbol, logo, etc.
- A trademark is in effect as long as the owner renews the trademark every 10 years. If the trademark is allowed to expire it becomes public domain.
- A logo, name, etc. does not need to be officially registered to be trademarked, but without being registered it is difficult to make a case in court if someone else steals it.

(Here’s a great but slightly lengthy paper about it from Stanford University, including the history of and arguments against intellectual property rights: http://plato.stanford.edu/entries/intellectual-property/)


I think some types of copyright or trademark infringement are pretty easy to identify. If you take someone else’s photograph or logo and straight turn it into a cross-stitch pattern that would be infringement.

But what is still ambiguous to me is where the line is drawn when it’s not so cut and dry.

What if someone’s design inspires one of your own? What if you use someone’s photograph as reference when designing? And what about movie/tv inspired designs? Where is the line? Is depicting any character or object in it infringement? What about a quote?

I think these issues are not so easy to make a determination on, but I’m sure there is some information out there to help us understand how to judge better what is ok and what isn’t.

[Former_Member]

Another great site about copyright and fair use and how it specifically applies to online images. http://www.socialmediaexaminer.com/copyright-fair-use-and-how-it-works-for-online-images/

[Former_Member]

Something interesting I’ve found is something called Transformative Work… It’s a confusing thing. This article was part of a book about “fan fiction” which I think is similar to some of the work of cross stitchers.

http://journal.transformativeworks.org/index.php/twc/article/view/418/278

"If the fan work in question is about a copyrighted character or place, the inquiry has not yet ended. Under US copyright law, copyright holders control the right to "derivative works," which are works "based upon one or more preexisting works". Therefore, a fan work, even about a copyrighted character or place, would have to be a derivative work to be infringing. After a brief discussion, Schwabach concludes that most fan fiction probably would be considered derivative—but again, as always, it depends.
However, even if a derivative fan work about a copyrighted character exists, the question remains whether that work is infringing, because that fan work is noninfringing if it qualifies as a fair use. Fair use is a complicated and fact-intensive inquiry, requiring an examination of at least four factors: "(1) the purpose and character of the [fan work]…; (2) the nature of the [original] work; (3) the amount and substantiality of the portion [of the original work] used in relation to the [original] work as a whole; and (4) the effect of the [fan work] upon the potential market for or value of the [original] work". The outcome of a fair use analysis is almost impossible to predict in the best of circumstances. Rendering the predictive nature even more challenging in the fan work context is the fact that a dearth of precedent exists. There has been little litigation and even fewer published decisions."

[BlueTopazStitchery]

"Fair use" generally applies to use of copyrighted works for non-profit purposes, such as criticism or commentary of the original work. The concept behind "transformative work" is to shore up the fair use provisions in copyright law, to allow fan creators to continue to make non-profit fanworks (e.g. fan fiction, vids, art, remixes) without worrying about the constant legal hassles of DMCA over-reach.

However, once profit is involved, fair use really doesn't apply, except perhaps in very narrow circumstances. For example, I can design a Pokemon pattern for my own, personal use only. Even though it's infringing, I'm not profiting from it. I can't sell that pattern, though. I don't own the rights to make or distribute derivative works. Once I want to make money, I generally need Nintendo's permission to sell. I can't even distribute the pattern for free, because I'd still profit indirectly from infringement (by using that Pokemon pattern to promote my own brand).

If I designed a parody pattern, I *might* be able to sell that pattern without Nintendo's permission--parody is one exception--but it's not guaranteed. I'd need to prove, in court, that my parody pattern meets the exception. It would probably be the same for "inspired" work, too. So fair use may not be sufficient when profit is involved. (And note, I am not a lawyer. It's always best to consult one who's familiar with IP law.)

[Former_Member]

Thanks for clarifying TD!