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Are Pattern Products Copyrighted?

Discussion in 'Copyright, Trademark, Patent Law' started by Anastasia91, Sep 27, 2009.

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  1. Anastasia91

    Anastasia91 Law Topic Starter New Member

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    Hi there! I'm a seller on Etsy, and this is a topic of high debate for us there.

    Some people say that you cannot make something from a pattern, free or otherwise, and sell it. They say that the pattern and the products made using the pattern are copyrighted.

    Others say that only the pattern is copyrighted, and that artists have the right to sell the items made from patterns. After all, it was their hard work and materials that went into the final product, and they did purchase the pattern. And the designer shouldn't be able to regulate whether they sell the hat they made or not!

    What is the legal truth in the matter? Of course, with us artists and artisans, our debates on the subject can get pretty heated. I would like something definitive to be able to use for personal reference and to show my fellow crafters. :rolleyes:

    Thank you so much!
     
  2. jharris352

    jharris352 New Member

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    I usually don't answer if I am not certain of my answer, but I'm 90% certain of this answer so I'm going to give it a try.

    I believe you can use a pattern to make and sell dresses or whatever unless the package specifically forbids it. In-other-words, when you purchase something the purchase and use of that product is unlimited unless EXPRESSLY noted in the purchase transaction.

    So my guess is that unless the label or packaging of the pattern specifically put you on notice that the pattern can not be used in that manner you are fine.

    Like I said, I may be wrong but that is an educated guess. Good luck.
     
  3. Anastasia91

    Anastasia91 Law Topic Starter New Member

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    Thank you so much for your response! :)

    So, to clarify, if the pattern says you can't use the product for profit, then you can't? But if it doesn't say, you can?

    Here are some of the differing opinions posted on Etsy:

    "You CANNOT copyright the items made from a pattern, You CAN copyright the actual pattern-this means that a person CANNOT copy the paper pattern or instructions and then sell it themselves. IF YOU COULD COPYRIGHT A PATTERN AND EVERYTHING THAT IS MADE FROM THAT PATTERN THEN PATENTS WOULD NOT NEED TO EXIST!"

    That is what I thought about pattern ©s.

    But here is what others say:

    "To be clear again, if you create the pattern, you own it's copyright and have exclusive rights to it and what is created using it. You can authorize others to create with it for themselves and you can refuse authorization for others to create and sell their items using the pattern. Those are the rights of the copyright holder."

    Which I honestly didn't think was correct... It just seems to me like everything would be copyrighted then! You can only combine stitches in so many ways... So anyone could copyright anything. And no one would ever be able to sell anything, because it might fall under a copyright.
     
  4. jharris352

    jharris352 New Member

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    It only makes sense to me the way I described it. If you don't limit a sale of any asset prior to the sale then you sell the item and "all rights" to it. Like buying a piece of property. I can sell you property with the exception of the mineral rights, or water rights. As long as I disclose to you ahead of time and exclude the Mineral rights on the title then it's ok. But if I sell you the property without making those disclosure you get the property and ALL rights to it.

    If I sell you a pattern and do not warn you that you are not buying "all the rights" then I am not disclosing all the terms of sale and therefore there is no valid sales contract. So I imagine that anyone wishing to bar purchasers from using their pattern commercially would have to give notice to potential purchasers that they are not buying "all rights" to the property.

    I know I'm sounding like a lawyer. Give me credit if I have been a help. Thanks. Good luck.
     
  5. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    There is no question that patterns can be copyrighted or trademarked, the latter being the more common and more appropriate protection method. The most famous cases are Levis designer jeans and you can read about them below.

    Levi's says Abercrombie pickpocketed design
    Denim maker files another lawsuit, this time against teen clothier Abercrombie & Fitch, over theft of its trademarked back-pocket design.
    Denim maker Levi's Strauss & Co. has filed a second lawsuit against another competitor this month alleging that the retailer - Abercrombie & Fitch - illegally stole its trademarked back-pocket stitching design, according to a published report Thursday.

    New York Times: January 29, 2007
    Levi’s Turns to Suing Its Rivals

    United States Patent and Trademark No. 1,139,254 is not much to look at: a pentagon surrounding a childlike drawing of a seagull in flight.

    But the design for a Levi’s pocket, first used 133 years ago, has become the biggest legal battleground in American fashion.

    Levi Strauss claims that legions of competitors have stolen its signature denim stitches — two intersecting arcs and a cloth label — for their own pockets, slapping them on the seats of high-priced, hip-hugging jeans that have soared in popularity.

    So Levi’s is becoming a leader in a new arena: lawsuits. The company, once the undisputed king of denim and now a case study in missed opportunities, has emerged as the most litigious in the apparel industry when it comes to trademark infringement lawsuits, firing off nearly 100 against its competitors since 2001. That’s far more than General Motors, Walt Disney or Nike, according to an analysis by research firm Thomson West.
     

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