Fabric, Copyright, and Licenses, Oh My!

by Kim on 23/10/2006

in Resources

What exactly are you buying when you purchase a piece of fabric? Most consider it like a lump of clay or a sack of sugar: a raw material that you can use as you please, including reselling items that you make from it. However, unlike most raw materials, most fabrics are printed with copyrighted patterns, and the pattern must be treated like any other copyrighted work, like a song or piece of writing. Obviously, you can’t copy a design, reproduce it onto fabric, and sell it. You also can’t scan the pattern and use it as the background of your web page, or print it on paper and sell it as gift wrap.

Still, the common wisdom about fabric as a raw material leads to much confusion. Consumers assume that since they have the right to use the fabric as they please, that the pattern upon it is akin to public-domain clip art. Once upon a time, when the vast majority of fabric designers were anonymous, this may have been the case (in practice, if not law). But now, we have the digital age — which makes transmission and reproduction of designs a snap — combined with the growth of big-name fabric designers and manufacturers interested in protecting their names and their work.

You can’t cut up (sample) a song and re-use it your music without the original copyright owner’s permission. But most people rightly assume you can cut up a yard say, Kaffe Fassett fabric and use it in a quilt or a bag that you turn around and sell. What’s the difference? I don’t have the legal answer to that question, but if this past week is any indication, it is clearly an issue that deserves clarification.

Earlier this week, Cory Doctorow of the uberblog BoingBoing posted a tirade against fabric designer Heather Ross and online fabric retailer Reprodepot for what he considered an abuse of copyright. The owner of Reprodepot (who is a close friend of Ross) was selling overstock of some of Ross’ fabric that had been previously used to make products for her brand of pajamas and intimate apparel, Munki Munki. The item page had the following notice: “Please note: This fabric can be purchased for personal sewing projects only. This print cannot be used for items made for resale.”

ross-poolparty.jpg
The center of the controversy – “Pool Party” by Heather Ross

To Doctorow, Ross and Reprodepot were overstepping Ross’ intellectual property rights. It turns out that the notice did not originate with Ross and that she is more concerned about crafters using her name (read: infringing on her trademark) to sell their homemade products. The owner of Reprodepot responded to Doctorow’s post, admitted that the notice had no legal backing, and rephrased it as a request before removing the product altogether. To add to the confusion, another online fabric store, Sewzanne’s, appears to extend a similar restriction to Ross’ line for Freespirit Fabrics, called Lightning Bugs and Other Mysteries. It appears, however, that Ross intended the restrictions to apply ONLY to the Munki Munki fabrics, and it is unclear whether Ross requested Sewzanne’s to post the notice in the first place.

There was a lot of interesting fallout from the BoingBoing/Reprodepot exchange here and on my own blog. One thing is clear: home sewists strongly dislike being told what they can and cannot do with fabric they buy, and they feel that if you want to control what happens, don’t sell it in the first place. Many commenters wrote that they have not bought Heather Ross or Amy Butler fabric because of the restrictions on reselling. Amy Butler’s FAQ page used to state that home sewists could only sell small quantities of products from her fabrics and could not, for example, sell the products via the internet. Now it states that individuals “can make items for sale. Since you are buying the fabric at retail, the non-commercial use does not apply to you.” However, at this time, people or companies buying the fabric wholesale are restricted in what they can sell and how they can sell products made from her fabrics.

selvedge.jpg
No “for non-commercial use only” notice on the selvedge here — but check your own stash!

Susan Scafidi, a law school professor with an interest in legal issues related to fashion,
wrote this great response on her blog Counterfeit Chic, clearing up the issue the best that I’ve seen so far:

While statements like this license are often used in conjunction with the sale of, among other things, software to secure certain rights to the seller, these rights are separate from the intellectual property rights associated with the goods. In other words, a license is a private contractual agreement, not a property right granted by the government. And private parties can place a wide range of restrictions on many types of property at the time of sale – e.g. “You can buy my house, but only if you agree to keep it painted pink.” If the buyer chooses to accept the restrictions, fine; if not, the buyer is free to look elsewhere.

So these restrictions are NOT part of copyright law, but do have legal standing as a contract made between two parties, though in real life they may not be enforceable. In fact such licenses appear to be the exception, rather than the rule, in the fabric industry today, at least if my google searches are any indication. However, if you look over to the scrapbooking industry (think of all the patterned paper, rubber stamps, stickers, etc. involved), there is a wide range of licenses associated with their raw materials. It seems that the backlash against Ross and Butler have caused them to rescind or scale back their restrictions, so at least in our little corner of the world, the consumer’s voice does matter. The designers are not evil intellectual property tyrants but are trying to strike a balance between protecting their work and delivering what their supporters want.

Disclaimer: I am not a lawyer nor a copyright or trademark expert, just someone interested in fabric. What I do know about intellectual property law is limited to U.S. law, so I have no idea whether the licenses discussed above are valid in other countries.

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{ 31 comments… read them below or add one }

1 sarah October 23, 2006 at 5:55 am

Very good summing up. Yes, the designers can put restrictions on use if they want, but to me it seems like they’re shooting themselves in the foot and depriving themselves of business. People who are buying fabric, at retail, and making items to resell are probably going to buy a lot more fabric than your average home sewer, AND create extra exposure for the designer. I’d love to hear a designer’s view on this though.

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2 Jessica February 16, 2013 at 8:56 pm

I’m trying to start a clothing line and hearing all these things about fabric designers not wanting you to sell the fabric and have it only for your personal use is stupid. Is like telling someone that they can’t sell baked goods made by flour bought at the supermarket only because it’s copyrighted. Upon hearing this I have to look elsewhere to buy large quantities of fabric for commercial use. One thing I tell you, I’m not buying from any of these retail pattern or fabric stores. Keep you home sewers, I’m not interested.

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3 Miss Dot October 23, 2006 at 7:58 am

hey, when Ikea started selling fabric here in Perth (which they have now stopped) they used to have a statement up that you couldn’t make bedding out of it! something about import tax I think.. it is such a big issue, I noticed it on Hello Kitty fabric the other day. I understand the designers wanting to protect their income. I to would be interested to hear what a designer has to say.

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4 Kim October 23, 2006 at 8:22 am

Maybe the IKEA fabric didn’t meet (in)flammability standards for Australia? It wouldn’t surprise me about import taxes though — I’m sure they can be quite arcane!

Hello Kitty is a licensed character, so I’d expect that kind of fabric to have restrictions. I believe the same thing applies to fabric printed with university logos, mascots, etc. I’m not sure but I think that’s getting into trademark protection territory. Though again I don’t see how restrictions on such fabrics would be enforceable in the real world.

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5 Candida Blows October 23, 2006 at 8:36 am

My idea of making something for someone, for payment, is more like value-adding. Fabric purchase at retail prices is purchased for the purpose of making something. If I am creating clothing from this fabric can I not expect some payment for my service. Crafters don’t tend to make things in large commercial quantities. Handmade, original and limited quantity are the things that appeal to me when buying. Common sense and courtesy can be applied when thinking this issue through. Thank goodness for fabric designers like Amy Butler and Heather Ross who have brought us fabrics we love to buy.

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6 sooz October 23, 2006 at 9:21 am

Interesting read – and very well written – thank you.

It hadn’t occurred to me about copywrite applying to fabrics – food for thought and something to look out for.

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7 megan October 23, 2006 at 9:28 am

One huge difference between songs and fabric is that songs are not produced specifically to be made into something else by the consumer. The general intention for purchasing fabric is to sew something with it. I agree with Sarah that designers are just shooting themselves in the foot by not encouraging others to distribute goods made of their designs.

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8 Tanya October 23, 2006 at 9:53 am

I found this latest issue very interesting. I was immediately reminded of a post on the Tumbling Blocks blog that showed a vintage fabric find that bore an uncanny resemblance to a current Amy Butler design.
The post is here: http://tumblingblocks.blogspot.com/2006/08/belle-chrysanthemum.html
and the current Amy Butler fabric that is almost identical can be seen here:
http://reprodepotfabrics.com/crymmd.html

It really clouds one’s understanding of what is truly an “original design”. I wonder if Amy Butler had to get explicit permission to reproduce the pattern from the original designer of the vintage fabric?

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9 Vespabelle October 23, 2006 at 12:14 pm

This article about Karen Dudnikov who sells items made from branded fabric shows that Cory was right about the use restrictions. Dudnikov has won against these giants.

Although, I think it’s totally unfair to pick on Heather Ross and Repro Depot. (pick on Wal-Mart and their Precious Moments fabric!)

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10 Mrs L October 23, 2006 at 12:37 pm

The difference between resampling a song and cutting up a piece of fabric is that fabric is *intended* to be cut up and made into other items. A song is a finished product.

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11 mimi k October 23, 2006 at 7:40 pm

I read BoingBoing all the time and my take from the article was that he was once again writing about the definition of copyright- How it is misunderstood and the word is being used to scare people. It seems to be one of his pet peeves and he was showing another example- as he often does. He often discusses the misuse of copyright. Trademarks and licenses are a whole different thing- that’s when you get into logos, sports teams and cartoon characters. That is what I’ve seen at the big retailers.

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12 Terry October 23, 2006 at 8:22 pm

Thanks for the very informative read. It made alo more sense to me, this whole issue (which when I read the disclaimer re AB fabrics – shocked me). It was a fine line that you made clear – and also made me less scared to utilize HR and other designer fabrics I have already bought.

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13 Liza Lucy October 23, 2006 at 8:54 pm

Thanks so much for writing about this difficult subject. I love this blog and read it regularly. I want to clear up one possible misconception. As Kaffe’s coauthor and good friend, I know that he is not concerned that people are buying his fabric and making goods for resale. In fact, he was thrilled when he saw Johnny Depp wearing a shirt made of Kaffe’s Pacharanji Stripe in the pages of Vanity Fair magazine.

I am sure if someone were to take one of our patterns, use Kaffe’s fabrics and mass produce quilts for re-sale, he would have a very different view but for the small manufacturer of original clothing, quilts, and accessories, he is OK with that.
Liza

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14 barbara October 23, 2006 at 8:55 pm

As yet I have not sold anything I’ve made, mainly because I haven’t had the chance to make significant amounts of things that weren’t intended as a gift for someone. However, I don’t usually buy fabric where I can see from its description that I’m not allowed to sell anything I make with it and I don’t want to have to put stickers all over my fabric stash with what I can and can’t sell, as I simply won’t remember which is which!
I believe that what I would sell is my time and my handiwork that goes into the items I produce for sale and I’m not actually selling the fabric as such, although I agree that I can’t sell anything using the fabric’s name. Does the same apply to yarn? how about if i take a photo of a christmas bauble and sell it as a christmas card? where does it end?
I have found the same issue is doing its rounds about say stuffed animals or other crafted items – I find it hard to see sometimes where someone has truly come up with an original design… If only someone would make explicit laws on that with a classification of what’s original and what’s plagiarised…at the moment i believe many people are worried about being sued or attacked by others and i wish it didnt have to be like that.

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15 Gina October 23, 2006 at 9:06 pm

Thanks for the very interesting article. I have began to design cards and have in the works other projects and I use small pieces of fabrics to create images, so this is a very big issue with me. I have been fortunate to date that most of the newer fabrics I use, have been OK from the designer to use. I get it in writing because I do not want any problems down the road.

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16 Catherine October 24, 2006 at 12:50 am

Designers have a choice on how they would like to copyright their patterns. Creative Commons has a fliexible copyright which allows you to specify restrictions such as are derivaties allowed or can you use this for commercial purposes? Their site does a better job of explaining options, but I encourage all people to think about allowing their designs to enter the public domain.
http://creativecommons.org/about/licenses/

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17 Tami October 24, 2006 at 1:42 am

Wow, very interesting issues were raised here. On one hand I understand the textile designers’ interest in making sure that their names are not used to sell a finished product that they haven’t had any quality control over. But on the other hand I know how frustrating it is to figure out whether you can sell something without violating any laws. I’ve made dolls from patterns that I purchased that I know that I can sell because the pattern specifically says that the designer gives permission to sell a limited quantity per year. The only stipulation usually is that the design is credited to the designer as well as giving you, the maker, credit for constructing it. (Of course, I haven’t chosen to sell anything as of yet. Just too many friends and family to make things for first.)

I also have had a design stolen in the past. I once designed a great print (paid an artist to design it together with me) and sold it as swimwear to Wal-Mart while working at a manufacturer. Before the product had even hit the stores I had other fabric vendors showing me a similar print, if not the exact same version. Turns out that the first fabric converter had tried printing it in Italy and that factory took the design. That was frustrating! But that was outright theft, not someone who had legitimately purchased the fabric at retail price to then make a product for sale.

I was glad to see that Amy Butler clarified her position for the small home-sewer on her website. Hopefully Heather Ross won’t be discouraged from designing in the future. The textile market has never been so full of variety in designs as now. Thanks for bringing this issue out in the open.

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18 bekka October 25, 2006 at 12:30 am

While i thought Mrs L’s comment was perfect in making the distinction between a song and a yar dof fabric, it reminded me of an article I read in Wired last month regarding Beck’s latest release. the release was called a “new way to think about the album” because “In the end, fans can create their own versions of the album, stringing fave songs and remixes into one ideal playlist.” So, in reality, songs are not finished products. and it’s possible that books are not finished products either, especially once an artist gets a hold of a copy and turns it into an altered book. we live in an interesting time beacuse products are more easily customizable by the consumer.

to read more about the beck interview at wired: http://www.wired.com/wired/archive/14.09/beck.html

and, there is nothing Original. we all draw inspiration from our predecessors as they did themselves.

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19 joybucket October 25, 2006 at 10:37 am

On the subject on copyright, there is a good post here about it in regard to blogs.

http://www.plagiarismtoday.com/?p=338

After consulting with an attorney about copyright, I was strongly encouraged to register my copyright with the US copyright office:
http://www.copyright.gov/

There is plenty of information which explains differences in copyright there.

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20 joybucket October 25, 2006 at 10:40 am

After writing my first comment I found this link:
http://www.plagiarismtoday.com/?p=361#more-361

on the plagiarism today site. It’s very interesting and a good resource.

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21 sulicat October 25, 2006 at 11:05 am

The fact that textile designers actually get recognition for their designs now is great. I find it an interesting contrast to the centuries of anonymous designers who recycled one another’s work over and over almost seemingly as a matter of course. Browsing through great textile design books like Textile designs: two hundred years of European and American patterns/ by Susan Meller and Joost Elffers can be quite eye-opening. Design can be timeless, just like bickering over money and property rights.

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22 Hanna October 26, 2006 at 5:00 am

Very interesting, thanks. I’m wondering if you can copyright patterns for clothes or softies, would be interesting to read about this subject too! Like when you buy a pattern for something to sew it can say that you can not sell the items that you make… That might be a agreement between two parties too, but not if you bought the pattern online and it didn’t say “no selling your items” there? Or?

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23 Kim October 26, 2006 at 9:27 pm

I recently bought some Nancy Wolff fabric on eBAY and had no idea it would have a no resale/personal use only statement on it. I feel that if I design something that is OOAK and use any fabric I have purchased (and not hand drawn & colored myself ) then I am still changing that original fabric into something else. It’s very tricky, and every artist/crafter seems to have their own interpretation of the law. Someone once asked me to paint an image of Barbie on a jean jacket for them and I didn’t do it because if she would have paid me then I felt I would be breaking the law. I like Heather Ross fabrics but I have had to buy them online because the 8 local quilt shops in my area don’t carry them. Is she afraid the average seamstress is going to become rich from using her fabric to make their own jammies to sell? What if I buy Nick n’ Nora jammies at a thrift shop and cut them up to make a doll? Is that re-cycling or infringement? Cheese & Rice! Who would know anyway? The copyright police I suppose.

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24 jessica October 30, 2006 at 2:04 am

This sounds similar to what Swarovski has done in the past year or so. They have put limitations on using the name Swarovkski. In short hand … it comes down to … you can say *jewelry made with Swarovski components*, but you can’t say *Swarovski jewelry* … this protects their lines of jewelry, but allows for the use of their components in resale work. At least, that is how I’ve understood it for the little folks like us. :)

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25 bernadette October 30, 2006 at 11:23 pm

I have worked as a buyer at a large, independent fabric store. Some print cottons, mostly meant for quilters use, came with “not for commercial use” printed on the selvedge. This included fabrics with disney designs, hello kitty, etc. Customers who wanted to make items to sell (often at fund-raiser craft fairs, so mostly for charity) were told that it was not a good idea to use these prints. Disney was known to be especially vigilant.

I think if it is actually printed on the fabric, you should respect the copyright wishes of the designer, who often has her/his own line of finished articles for sale. There are certainly plenty of ‘unsigned’ fabrics out there to use.

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26 Midwest Too November 8, 2006 at 2:17 pm

I’ve been ticked off at Ms. Butler for well over a year after investing in her fabric (I own at least a yard in every pattern made before 2006. I’ve been refusing to buy from her since then). I’m happy to hear she has backed down, but a thought that came to my mind at that time and now with others like Heather Ross is that they need to decide whether they are going to be fabric designer/sellers or pajama/purse/homegood designer/sellers. Amy’s previous restrictions were placed because she wanted to be able to sell her own finished products with her fabric. It was like she saw how succesful her fabric was for smalltime crafters and artists and suddenly she wanted it all for herself. She has that right, but she should have removed the fabric from sale to crafters. The “i’ll take your money, but all you can do is make pillows and aprons for yourself and friends” mindset is BS.

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27 E.V. Lowi November 29, 2006 at 1:53 pm

It is my understanding from researching the subject in the NOLO Press ‘Law for All’ books that garments are not covered by copyright but soft sculpture is.

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28 E.V. Lowi January 18, 2009 at 7:58 pm
29 Cathy August 22, 2012 at 3:43 pm

I don’t recall reading or seeing a disclaimer posted in the store where I purchased a piece of fabric that I could not use it as I please. If I can purchase it from the fabric store cut-up, adjusted, or altered for my needs then why can’t the customer do the same. These licensed fabrics should be sold separately with a disclaimer fully disclosed. Do the fabric store have some type of clause that states they are exempt from the same practice. I believe that is what the fabric in the store is there for; I can use the fabric as I desire.

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30 Maria October 30, 2012 at 10:15 pm

Im a designer and small business owner I started designing clothing and selling to local boutiques in my town. I have been purchasing all my raw materials at ebay….and just recently got a letter from a designer’s lawyer wanting to take me to court for copyright….Im buying material in the open market and there is no contract or writing about the material… Im very upset! What should I do? I don’t believe Im violating the law..

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31 kath_red October 31, 2012 at 12:22 am

you’ll need to consult a lawyer.

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