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.”
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.
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.
