Copyright, IP and… Fabric? Oh My!
Posted in Learning
My various projects in the world of sewing, web, and life are legion, but I’ve now got it in my head to start quilting. We’ll see how that goes considering I’m 48 hours into this plan, and I’m already being surprised. Not by the process of quilting but by something I found as I quested into the rarely-explored (by me) section of quilting fabrics at the local JoAnn Fabrics: non-commercial, home use-only fabrics. What?
No, my eyes aren’t deceiving me, right?: that bit of fabric selvage clearly states Sold for non-
commercial home use only.
Intellectual property (IP) and copyright isn’t something I’ve ever considered to have ramifications on the sewing world. Considering that most of my sewing experience deals with basic, mostly non-patterned fabrics, there’s been little call for me to consider the implications of copyright on my creations. I learned not too long ago that clothing can’t be copyrighted, even though patterns can be, so that was the end of my thoughts on the matter.
Serendipitously enough, Katherine, the author of a blog I follow (and college friend) is the daughter of a patent/IP lawyer, and she—with answers from her mom—just authored a post about how IP has (or doesn’t have) an effect on Etsy products. Her article is where I’m sourcing most of this from, with a little help from my years of awareness with Instructional Technology work (although digital media is its own beast when it comes to copyright).
Define IP and copyright
People have spent entire law careers focused solely on IP: a good indication that there’s no clear-cut, always-followed definition. A good working one however is that Intellectual Property is a copyrightable, trademark-able or patentable product of someone’s creativity or intellectual activity.
For a definition of copyright, we’ll look to Wikipedia:
Copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. These rights can be licensed, transferred and/or assigned. … Copyright applies to a wide range of works that are substantive and fixed in a medium.
So, how is fabric IP?
Let’s get semantic here: if we consider that copyright applies only to works that are fixed in a medium
, fabric can’t be copyrighted. While it is itself a medium, it becomes other media, such as quilts, clothes, decorations. It can be affixed to artworks, etc. It is not fixed to any specific medium. Not to mention, if the method used to weave plain-weave cotton fabric could be patented, it’s fallen into public domain by now, surely.
But in this case, the fabric isn’t just defined by its method of construction, but by the design printed on it. That design is fixed to a medium: the fabric it’s printed on. Additionally, the visual design was created by someone—in this case Susan Winget—and is therefore a copyrightable piece of “art”.
Does it really mean “I can’t sell a product made with this fabric?”
Because IP and copyright are both so debatable and have a variety of gray-areas, it’s hard to just say “yes” or “no” here. So, let’s discussed a couple different types of selling:
I’m a clothier who intends to make objects of clothing out of this with the sole intention to profit. No. From start to finish, the intent here is commercial.
I’m a hobbyist that sews clothing, quilts and craft things for my [children/grandchildren/friends] and those items are occasionally resold once they’ve been outgrown. Probably ok. This is a gray area. The item created from the fabric was not made with the intention of commercial profit. If you were to post an item for sale it may be within the artist’s rights to request that you remove listings of the item, but you should contact a lawyer only if that happens. Chances are, the artist won’t care in this situation. Your intent was not to profit, you’re merely (re)selling a used item.
When I talked to Katherine about this, she had another good point: “Commercial use” also applies to things used in for-profit plays, television shows, advertisements, etc. So, if you’re making an article of clothing or craft item for display in say, your pattern company’s catalogue, as a project made from your pattern, you’re violating copyright if you use this fabric. Or, if you’ve sewn a quilt using this material for non-profit purposes but use an image of that quilt in the advertisement for your quilt-making company, you’re probably violating copyright with that advertisement.
So, this all really makes me think twice about ever buying fabric from that designer again. The project I purchased this for is most likely going to be presented to a friend’s baby, but as she gets further along and finds out the gender, I may start a new, more-gender-specific quilt. If that were to happen, my thoughts were to possibly sell the currently in-progress project. That makes me wonder if I should even bother using the fabric in it at all. I’m sure I’m not the only one out there with that choice to make. That’s not to say that I don’t think fabric designers deserve to profit and have rights to their designs, but as a craftswoman trying to navigate the big bad world of commercial endeavors, this is one more thing I have to be aware of—and worried about—when plying my hobby/trade. In my world, it’s simpler to just deal with fabrics that don’t have copyright strings attached.
Do you think fabric should be able to be given this sort of terms of use? Have you encountered issues with this in your own sewing? One thing’s for sure: I’m definitely going to be more cognizant of what I’m buying in the future.
16 Responses to “Copyright, IP and… Fabric? Oh My!”
Katherine
2:35 pm | 07/06/10
I think I may have forgotten to mention: you can always *ask* a copyright holder for permission to use the work commercially, if you really like it and want to use it.
Also interesting to note that *patterns* (like for dresses) are *not* copyrightable, *even though* there’s language on the package stating that it’s not for commercial use. From what I’ve gleaned, that language doesn’t really hold up in court. The law tends to agree that it only violates copyright to copy that pattern to give to a crafty friend or relative, or to resell it as your own. Selling something you *made* based on a pattern you bought from someone, however is totally legitimate. (Arguably something like “moral authority” [I think it’s called] comes in, where you should credit the original source in your item copy/description, but that gets hazy.)
Fabric does totally fall under copyright (as a visual art), of course, so copyright rules apply. But in some instances those rules are not as far-reaching or concrete as companies would like you to think. That’s why it’s always good to double check.
raevenfea
6:30 pm | 07/06/10
Good point about asking. You mentioned, I overlooked during authoring.
I also heard from a 3L friend today that there is precedence in the courts to overturn suits against persons accused of flat out duplicating copyrighted fabric designs. Something about a case with Chanel and copiers selling on the mass market in the 1920s and other cases since. I’m going to look into that further and follow up with another post.
victoria
2:12 pm | 02/10/11
i would like to understand if a fabric says for home use you can not create for sew things and sell to make some extra money. fabric for non commercial use quilts can not be made and sold. should one look for fabric that do not state the above? and if non commercial use you can not make quilts and sell them
raevenfea
2:43 pm | 02/10/11
Victoria, you seem to understand it perfectly. If the fabric says non-commercial home use only, that means the designer does not give you permission to sell anything you make from it.
So, if you intend to sell things you make, you should look for fabric that does not say “for non-commercial home use only.”
But as Katherine said above, if you really like a fabric and want to use it, you can always ask the designer. Just be prepared for them to say no or require that you purchase a license from them (or likely give them a percent of the profit).
Karina
7:44 pm | 04/26/12
Do you know if this means that we can use fabric for commercial use when it does not say on the fabric? I bought some fabric, my first time, and realized that some of the ones I bought do say “for noncommercial use only” and others don’t say anything at all. Does that mean that I can sell products made of those fabrics?
Rachael Arnold
11:13 am | 04/27/12
Karina, typically, if a fabric doesn’t specifically say “for non-commercial, home use only”, you can make and sell whatever you want out of it. That said, if you’re doing large-scale production, you may need a license. When in doubt, ask the manufacturer or designer.
Diane
4:13 pm | 07/06/12
Do you have any information about fabric from let’s say, the 50’s? For example, you buy old barkcloth at a yardsale. How would you ever determine if it was copyrighted at one time? Thanks so much for your thoughts.
Diane
Rachael Arnold
9:06 am | 07/10/12
Diane,
I’m not very familiar with what sort of copyright would apply to vintage fabric or how to find out, unless something is printed on the selvage.
That said—and I’m making some educated guesses here—although the occasional issue with copyrighted fabric designs popped up throughout the 20th century, the really big trend in suing for copyright infringement for fabric use has only been around for the past 20 years or so. And, fabric manufacturers and designers haven’t had the law on their side since a case in 1997 where a judge ruled that a company using Precious Moments fabric to make bedding had every right, as the copyright holder could only control the license on the first sale.
But—and remember, I’m not a lawyer or expert—a general rule to follow is that if there’s no explicit restriction printed on the fabric, you should be fine to make and sell things from the fabric at a reasonable production level—if you’re doing wholesale runs, that’s a different scale and issue.
What you can’t do, even for fabric from the 1950s with no explicit copyright information*, is copy the fabric design and have it reprinted onto other fabric for use in products to sell (or to sell the reprinted fabric itself).
*Actually, there’s a good chance that copyright has expired in this case, but you would definitely want to contact a lawyer before doing anything with that.
Michael Chinski
6:42 am | 12/11/12
What if they purchase the fabric and you charge for labor or if you purchase the fa roc and only charge for the labor? If you sell something
Like pjs that took you a few hours to shop, cut, sew, post, invoice, and ship for even say $20 that hardly covers reasonable wages.
Rachael Arnold
11:15 am | 12/14/12
That’s a grey area that should probably be discussed with a lawyer. I would think that if they purchase the fabric and you’re charging only labor, you’re in the clear—it’s still being used for personal use only, they just happen to be hiring out the creation.
You buying the fabric with the intent to sell, even if you’re only charging labor can be a bit more tricky—the argument could be made just as easily that you’re charging for the fabric and giving the labor for free. If you’re just doing it on a commissioned, small-scale basis, the fabric maker might never know but you’re still violating the copyright notice (whether it would be held up in courts, I can’t say).
If you are making things with a plan to post it for sale in a public venue—be it a craft sale, on Etsy, etc.—regardless of whether you’re only charging for labor, you’re still clearly violating their copyright and opening yourself up for a lawsuit if they come across it.
Jess Kingstone
7:23 am | 06/16/13
I’m possibly super late to this article’s discussion, but I’ve just come across this issue as well. Thankfully, none of my 100+ fabrics in my collection have that written on the bottoms, as I’ve generally been put off buying fabrics that have “not for commercial use” on the bottom (I don’t personally see the point in printing fabric if you don’t let people sell the products! Seems a bit of a cutting off noses to spite the face situation to me) but it brings me to wonder – does it mean that if it *doesn’t* say that along the bottom that it’s ok to use for items meant for sale?
It’s a rather odd area, as you say, if you didn’t have that particular part of that fabric, you’d never have known whether it was for home use or not.
Rachael Arnold
10:36 am | 06/17/13
Yes, if it doesn’t have that on the selvage, you can make items meant to use for sale.
There’s a whole other conversation to be had about whether writing that on the selvage actually means it is enforceable…
Lee
3:01 pm | 09/27/13
I was shocked to see this notation on some fabric I have had for maybe a year but only cut into today. Had planned to make aprons to sell….but now I guess not.
I am also wondering, though, about the enforceability of this. Or the policing of it…I mean, do they troll Etsy trying to find violators and send a cease and desist letter or just slap you in jail? It seems completely ridiculous to me.
Debbie
11:23 pm | 07/08/14
I checked on this also. I went looking for answers and found http://www.tabberone.com/Trademarks/folder/Selvage.shtml
Matt Redmond
11:41 am | 06/30/16
The First Sale Doctrine applies here. You cannot “copy” the fabric (that is, produce fabric with the same design), but you are free to use the fabric however you see fit, commercially or not, BS warnings notwithstanding.
This is the same doctrine that applies to books, DVDs and virtually anything tangible other than music and computer software (which have some special limitations provided by copyright law).
Once you buy that fabric you can use and resell it all day long.
Tommye Jean Winkley
3:30 pm | 04/29/18
What about the rest of selvage message: “Do not use for children’s sleepwear”? Can I use this fabric to make a receiving blanket for a newborn?