Clarification on what constitutes a "Derivative Work"

[Real_Learning]

My state: ID

I participate in several online communities which include both pattern designers and craftspeople in various fields, including knitting, crochet, and sewing. There's a rather hot debate going on as to exactly how US Copyright Law applies to patterns--either for sale or freely distributed. Here's the crux:

Does the copyright which covers a written pattern (whether in electronic or printed form) extend its control over the product of that pattern?

These designers claim that the product of the pattern (such as an item of clothing) is a "derivative work", and as such cannot be produced for sale. It's my understanding that a derivative work is produced in a similar format, as are the examples given in the definition of "derivative work" at the US Copyright website are. (i.e. a translation of a book into another language is still a literary work, whereas an item knit from a pattern isn't a literary work, it's a utilitarian item.)

Another twist is many designers state on their patterns that the products made from the pattern may not be used for any type of commercial gain or even produced for charity. Does this fall properly under copyright law, or is this something to which contract law applies? If so, is it a valid contract?

Thanks so much, and I'm happy to clarify/expand if I've been unclear.

 

[WebJunkie]

Well, I'm not a lawyer, but I do a lot of programming stuff, which has lead me on many readings about copyright law.

It is an interesting question. Patterns, I have seen, seem to have two parts. They have the 'here is what it looks like', and the 'here is how you do it.'

Now, if one used 'here is what it looks like' to make their final creation, then most certainly, your creation will be a derivative work of the 'here is what it looks like' picture.

However, if one used the 'here is how you do it' to replicate an effect shown in the 'here is what it looks like' but the end creation does not look like what was pictured (structurally), then I would have to say, personally, no, that would not be derivative. I equate this to 'methods and concepts' in programming, which are covered by patents.

If you make something that looks the same as something else, by looking at that something else and trying to mimic it, then you're copying a work, and thus using copyright law to do so.

A translation of a book to a movie is also a derivative work, so your understanding is off there

To the last question, yes. It's not so much a contract, but a license. Without that license, you do not have the right to reproduce the pattern in any manor, legally. Sounds like perfectly valid restrictions to me. Their pattern, their choice.

 

[Real_Learning]

Thanks

Thanks so much for taking the time to reply. So I guess, for now, the question on the validity of the copyright of the finished product lies in the originality of the design.

The thing that I'm having trouble reconciling is how it seems that copyright law can be used to prevent just about any further innovation in a given industry--especially in one like sewing or knitting, where most of the workable possibilities have been done before thousands, if not millions of times, in the past. When someone sees something that intrigues or enthralls them, how can copyright law make it illegal for them to do something similar on their own? It seems so "3rd-grade, teacher-he-copied-me, silly".

I'll have to think some more about this, and get my thoughts straight. There's just something that doesn't seem reconcilable to reason and reality . . . but I haven't put my finger on it yet. Maybe it has more to do with the specific venue I'm working in (clothing) . . .

Thanks again . . .

 

[WebJunkie]

If Person A and Person B somehow both developed Product X completely on their own, they would NOT be violating each other's copyright by selling their Product X. Each would have their own copyright on their own creation.

This relates to programming as 'clean room reverse engineering'. Bacially, one group of programmers looks at the 'this is what it looks like' and writes the 'here is how you do it'. Then another set of completely different programmers look at the 'here is how you do it' to come up with their own implementation.

The real problem is, a copyright violation claim is generally a civil law. Meaning you use civil court, not criminal, where the 'requirement' for evidence is a 'preponderance of the evidence' (like, 'yeah, I can agree with their side mor ethan the other', pretty much from what I know) as opposed to criminal court where the standard is 'beyond a reasonable doubt'. It's much easier to defend a criminal charge than a civil charge, from what I understand.

Maybe this helps to make more sense? Or did I just mix up the mud some?

 

[Real_Learning]

Reverse Engineering and Imitation (was: clarification on Derivative Works)

Ummm, it's fairly muddy from where I'm sitting. I'm not quite sure what you meant by "clean room reverse engineering".

If two people come up with the same thing on their own (which happens quite often), that's not reverse engineering. It's more a case of great minds think alike. Reverse engineering (in order to be called "reverse" at all), necessitates exposure of the engineer/craftperson to the same end product of another's work, doesn't it? It was my understanding that the term itself was coined when people perusing trade shows (most notably technology trade shows) examined newly unveiled products and then returned to their own facilities and came up with their own way of producing a very similar product with most of the same features; sometimes with improvements, sometimes not. If two people coming up with the same problem to solve and solving it nearly simultaneously is reverse engineering, then all problem-solving and innovation could be called reverse engineering.

In the strict sense of the word, I believe you were talking about imitation. And imitation isn't copying. (Which, strictly speaking, means duplication.)

There are multitudes of instances in more than one industry (clothing, accessories, technology, etc.) where products are imitated on a regular basis. Many of the industry leaders and designers hate it with a passion, but not much has been done about it that I know of. I'm guessing it's due to the fact that these are all products produced in quantities larger than 50, (can't find the exact reference in copyright law at the moment, sorry).

There are also instances of case law (thinking of the Lotus vs. Borland case) where second-comer software has duplicated very closely the look, feel & features of an existing product. In the Lotus vs. Borland case, the court ruled in favor of Borland, who published Quattro Pro, stating that it was perfectly fine for Borland to imitate Lotus 1-2-3's UI so long as they didn't lift their source code or compiled binaries; i.e. so long as they didn't actually steal any of the physical implementation of Lotus' spreadsheet program.

So, there is clear precedent in case law showing that imitation is perfectly legal.

Copyright was originally legislated to provide a measure of protection for authors and other creative folks to ensure that they were able to profit from their original works for a limited time. (Which was originally just a short time . . . 15 years? 10? Can't remember.) Now, it seems like many people are trying to expand copyright protection into the scope of patents, combining the automaticity of copyright with the all-encompassing protection of a bullet-proof patent without the necessary patent application process, and many times without even a copyright registration. These folks seem to me to be trying to enforce a monopoly on whatever it is they did. And considering the current life of copyright, that rings a death toll for a lot of innovation if they are able to hold sway.

Hmmmm . . . this got a lot longer than I had intended. I've done a lot of reading over the last few days, and it's good to have somewhere to put in my own words the things I've assimilated, and see how they hold up to scrutiny.

 

[WebJunkie]

Yes, you're right, I didn't work it well enough, though it's kinda the same, since both just got there with their inspiration, even if the clean room team had a 'list' written by another group, really the same deal, but different motivations.

As far as imitation not being copying, if you look up in a thesaurus, you will see the words are synonyms of each other, so words alone aren't going to make the case on what is an infringing creation and what isn't.

There's a complication when you use software to justify copyright situations in other markets. The problem is like this:

In your typical manufacture process, you have your raw materials, your process to combine them, and your end product. The end product is what is copyrighted as that is the expression of the idea.

However, in software, you have the raw materials (plan, people, features), the process to combine them (writing of the source code), and the end product (program.exe and supporting files). However, software differs from other things as it has been determined that the copyright applies to the source code, and not to the end product.

This is weird, I know. But it is different. If I look at Excel, and build a program to work exactly like it in almost every aspect, as long as I didn't use their source code, I would not have committed copyright infringement when selling it commercially. However, if I copied a painting and tried to make it just as identical as the fictional program above was to Excel, and sold it commercially, then I would be committing copyright infringement.

Weird, huh?

Your take on copyright's origins seems correct.

The only issue I have with your second to last paragraph is I /think/ you are referring back to the pattern stuff you were talking about before. The pattern is the expression of the idea. If you use that expression to build your own carbon-copy of what the pattern laid out, then your creation is a derivative work of the pattern. If you modify the pattern, your modification is a derivative work of the pattern. If you create your own pattern, with enough (and I don't know what the legal amount of 'enough' is to say) of your own original ideas, while also taking some of the ideas in the first pattern (but not too many, and again, no idea where that line is), you would have an original work of your own, simply inspired by the first pattern.

How knockoffs and everything work in the fashion world is beyond me. The only thing I can think of is the cost of trying to litigate every instance of it. It would probably put a huge hamper on profits. Fashion, to me, as a guy, and not a 'well dressed' guy at all (haha!), comes across as all about brand names. I'm not sure if the major players stress so much about copies, as they have their brand name, which from what I've seen, is infinitely more important than the weird looking clothes they turn out.

If someone sued you for copyright infringement they would spend their time proving you had seen, had access too, had known about their design. That could all be made moot by you maintaining documents detailing the generation (creation) of your item. If you can prove independent creation, then it is not a copy of the other person's item.

And, this got quite long here as well. But it's copyright, and there's a lot to talk about. Let me know if you think anything I said was off/wrong and I'll do what I can to correct it. Mostly you're on course, but I think I threw you off talking about software, because it is WEIRD copyright wise.

Oh, and as to who keeps getting copyright extended... you notice that the legislation seems to come up whenever a particularly famous little mouse starts coming close to being public domain?

 

[Real_Learning]

More thoughts . . .

Point well-taken on imitate and copy. (I still see a distinction, but in the future I'll use "photocopy" or "scanned copy" or something instead of just "copy".)

I didn't realize the different applications of copyright to software as opposed to manufacturing/etc. It doesn't surprise me, though. Software is so completely different from everything else in the world--even if two engineers were given the exact same UI screen shots, specs, and required to use the same language, their code would look markedly different, simply because there's often so much latitude in how it's arranged. I've dabbled in enough css & html as I've worked on my blog to know that. Just trying to make sense of the various templates has made that clear to me. There are certain sources for templates that I like a lot more than others, simply because they're far more readable (and simpler to tweak/harder to break) than others.

I was referring back to the pattern issues I mentioned before. That's the entire motivation for my research--there are a lot of small-time pattern writers in the online knitting community (of which I'm a part) who are crying copyright infringement, when their claims are barely tenuous at an optimistic best. I've been trying to understand the law enough to put my finger on the really annoying "something's wrong here, but I don't know what" feeling.

What I've finally found is that because most of the patterns being written don't contain any novel designs (i.e. there are only so many ways to knit a pair of pants or a hat), the design and garment itself aren't covered by copyright. The patterns themselves are, because they're the unique creation of their authors; but the products have been knitted for decades from previously published patterns, and knitted for millennia without patterns before that (or copyright, for that matter). The argument has been that these items are works of applied craftsmanship, or art. The only trouble is that they are also useful articles whose aspects of "art" aren't separable from their utility. The varying placement of decrease and increase stitches don't qualify them as part of the "pictorial, graphic and sculptural works" group in title 102 of Chapter 1 of the copyright law.

Because there is no artistic element to these items that can be separated from their useful aspects, they're not covered--and therefore open to imitation, duplication, and any other form of copying so long as the author's pattern isn't itself used in the process. (That's where I was seeing the software parallel--in the fact that the UI isn't copyrightable, and neither are the finished items in the specific niche on which I'm researching.) As for the designer knockoffs, they also fall under the same exemption as knitwear. Useful articles which aren't eligible for patent protection.

It's amazing what one can learn when one goes to the source . . . hopefully I've made my position and logic more transparent than I had before, and this makes more sense.

 

[WebJunkie]

Bravo! Looks quite well argued from here!

I think we have everything straight now.

I'm sure for the most part things will fall under the utility guidance you have outlined. However I'm sure there are still creative elements found in clothing, such as 'do i use a button and button hole, or a tie, or a button with a loop of fabric' and such, but as long as you're working your own flair into what you make, I can't see why you wouldn't be fine.

Maybe the best route to take with these people claiming copyright infringement would be to find something pre-1882 (I think is the date where they changed copyright law majorly in the US?) and say 'No, I based this item off of [insert reference to pre-copyright item], which /has/ no copyright protection. Thanks for asking.'

I agree with you that there is an implied difference between copy and imitate but it's just a dangerous way to play when discussing legalities.

Anyone who starts really roaring about suing, tell them to send you their lawyers information and you'll have your lawyer call their lawyer. That usually tends to shut most people up. Don't give them your lawyers info, they'll just call and harass them and you'll be billed for it.

 

[Real_Learning]

Thanks.

The thing about the "creative element" argument that falls flat is the statement from the fact sheet about these types of things. It just states clearly:

"Designs for useful articles, such as vehicular bodies, wearing apparel, household appliances, and the like are not protected by copyright. However, the design of a useful article is subject to copyright protection to the degree that its pictorial, graphic, or sculptural features can be identified as existing independently of the utilitarian object in which they are embodied."

There hasn't been any mention of lawyers so far--it's just a community posture right now that I'm going to try to change. Wish me luck!

Thanks again for your time . . .

 

[Michael Wechsler]

This is a complex question. Much of the debate I have seen involves design and trademark more than the basic weaving process. I need a little more information from you. The most famous recent decision I know involves Levi's jeans:

http://www.nytimes.com/2007/01/29/business/29jeans.html?partner=rssnyt&emc=rss

This article does a great job describing the weaving of Levis, Wrangler, Lee, Espirit and other jeans and the patent and trademark issues concerning them, including derivative works which I think you are talking about. It's interesting. For some of this I find it absurd since the designs are so basic that the "association" is extremely limited except in fanciful stitching that is easily distinguishable.