Copyright Questions

[DWSUDEKUM]

Recently a pattern from a company that is no longer in business was posted and was pulled for copyright issues.  This does however bring up some interesting questions which I am going to repost here so that we can have a good conversation on this important subject

 

I have a copyright question or two or three that I am not sure that anyone in the village can answer.  

 

1st question.  If the owner ( a company )  of a pattern goes bankrupt and folds under and does not sell their patterns to another company or entity is it still covered by copyright or does it become public domain? 

 

2nd question If one were to make one of the patterns from said defunct company available for no profit at all would that be a copyright violation.  I am not sure as there is no company asset to protect as the pattern is in legal limbo.

 

3rd question  If one were to take one of these patterns and make modifications to it would that be a copyright violation.  I personally am leaning to no it is not as the copyright holder no longer exists.

 

4th question  How long from the time that a copyright holder dies or otherwise gives up the copyright does it become public domain?

 

(Birchbark asks these )

 

5th question  Did the original pattern designer sell all the rights to the magazine, or does that designer still control some part of the rights to that pattern.

 

The praying hands pattern was in the October 1997 issue of the Creative Woodworks and Crafts magazine (no longer in publication ) , is there a credit for the designer listed?  

 

6th Question Does that designer still have the right to sell that design?

 

*** IMPORTANT CONSIDERATIONS ****

Now all of these questions assume of course that all the patterns in the pattern database were not signed over to the parent company,  All American Crafts, totally.  It also assumes that the pattern database was not sold off to pay debts owed during the bankruptcy proceedings. If this is the case then the aforementioned questions are curiosities and nothing more.  Still it is important to understand were we as scrollers and  pattern designers sit on this tricky subject.

 

DW

Edited April 8, 2016 by DWSUDEKUM

[WayneMahler]

This came up on Facebook too. Someone posted the John 3:16 Heart and it was pulled under copyright. They stated that even since the publisher was defunct the pattern rights still belonged to the original author.

 

Reading this something came to mind. Dirk Boelman (rip) had different patterns published in the the same company magazine. But I didn't see those patterns on his web site.

 

Yet others have their patterns published and still offer them on the web sites. Sue Mey is one with her story crosses, as does Sheila Landry I believe. So I would say the answer to #6 is yes they retain the rights. 

 

The original authors of the praying hands clock was / is Dan and Raymond Wickens of Wickens Woodworking. So credit was given at the time of publishing to the authors. I still have that copy. As well as many others. 

 

As for making a pattern available for "no profit" in my opinion I would also think that is a violation of the copyright. Like I said "my opinion".

 

That begs this question then.

If a friend of mine borrowed one of my magazines and made a copy of a pattern would that also be in violation? 

 

Personally I don't condone the sharing of copyrighted material, but that is just me. I know there are websites all over the world that do just that. I prefer to support the original authors and honor the laws governing this subject.

[jerry1939]

My 2 cents worth would be;

 

IF you have even the slightest inkling that something could be construed as a violation, RUN AWAY FROM IT!  With all the patterns at our fingertips, either for sale or free, I wouldn't cut it.

We also have a good supply of pattern makers that seem to jump right on a request for something to be designed.

 

I'm off of my soapbox now.

 

jerry

[Chachi111769]

If this was the case I for one know alot of people would be in loads of trouble but this is what I found on the subject you may be surprised as to what I found Happy reading..

 

Copy right laws and what is and is not protected by them.pdf

[Travis]

I'm not a lawyer, but here is my take on the matter.  If you're looking for clarification for you own website or business, it would be a good idea to talk to a professional copyright lawyer.  

 

1)  The owner or designer still owns the copyright.  It is not in public domain.
2)  Yes, it’s still a copyright violation.  Just because you’re not making money off of it, doesn’t mean it’s not in violation.
3)  It would have to be a significant modification, otherwise it’s considered derivative work, which violates the original copyright.
4)  Creator’s live plus 70 years.
5)  Usually, the copyright remains with the original designer.  They work out a deal with the publisher to publish their patterns in the magazine.
6)  Yes.  They often do.  Sometimes the contract says they can’t make the pattern available for a certain amount of time (i.e., before publication).

 

 

With that said, it's up to you on how much risk you're willing to accept in your own business dealings.  Are you going to get into trouble making a sports team logo for your nephew?  Probably not.  If you were mass producing them and selling them at the game; someone's probably going to take issue with that.

 

As for SSV's policy, we don't allow copyrighted material.  Sometimes some things slip through, but I try to police it the best I can.  But if someone does take issue with a copyright violation, the heat comes down on me.  And while I love our SSV family, I don't want to go to court for them.  

[DWSUDEKUM]

If this was the case I for one know alot of people would be in loads of trouble but this is what I found on the subject you may be surprised as to what I found Happy reading..

 

Copy right laws and what is and is not protected by them.pdf

I am not sure that that treatise on the subject is totally correct.  The thing that I have seen and read is that there is such a morass of laws that no one really knows what is covered and what is not.  Thing is the original copyright laws were written in an age where we did not have digital media and electronic ways of distribution.  The copyright laws have been tacked on to the original time and time again both here in the US and Abroad.  There are even companies and countries out there that do NOT abide by these laws.  China, North Korea and a few others come to mindmin this regard.  There needs to be a concerted effort to standardize the copyright law for everyone, worldwide. 

[Lucky2]

DW, are you dreaming? There's just no way of making other countries abide U.S. copyright laws, especially the two that you mentioned. There are a lot of countries that do follow the U.S. copyright laws, but, if they didn't I don't know what could be done to them for a punishment.

Len

[Lucky2]

DW, I think that Travis has pretty much given you the answers you were Looking for. I'm not a lawyer, but, I would have given you the same answers. Personally, I think the two best replies that you received so far, is what Travis has posted. And Jerry's words of wisdom, are words to live by.

Len

 

P.S. The pattern designers for CWC retained ownership of their patterns, they got paid a stipend to allow CWC to offer up the patterns. Many of them had their site info printed with the patterns, hoping to generate more traffic.

Len

Edited April 9, 2016 by Lucky2

[DWSUDEKUM]

DW, I think that Travis has pretty much given you the answers you were Looking for. I'm not a lawyer, but, I would have given you the same answers. Personally, I think the two best replies that you received so far, is what Travis has posted. And Jerry's words of wisdom, are words to live by.

Len

 

P.S. The pattern designers for CWC retained ownership of their patterns, they got paid a stipend to allow CWC to offer up the patterns. Many of them had their site info printed with the patterns, hoping to generate more traffic.

Len

Len I never thought otherwise.  In a bankruptcy everything is retained and sold off or put in some form of receivership and I was willing to bet that they had done this with the pattern database as well.  I do agree with Travis's answer and the decision to pull the pattern.  There is a real need to overhaul the copyright law(s) and make them more comprehensive and understandable.  DRM is a disaster and was a knee jerk response to a perceived issue. Politicians should probably not be the ones crafting this law as they are corruptible and can and have been influenced by money and favors thrown their way. 

 

 The real question is when does it become public domain?  According to Travis's answer if a 40 year old designer made a pattern today and lived to the ripe old age of 90, then add the 75 years to the 50 years this designer lived after designing that pattern and publishing it and that pattern would become public domain in the year 2141.   One of my questions was touching this in what happens to that patterns status IF the designer is dead and does not have an estate for which this pattern would belong to, would this pattern belong to the public domain sooner than would otherwise be?

 

DW

[Dan]

3)  It would have to be a significant modification, otherwise it’s considered derivative work, which violates the original copyright.

 

Just to clarify, the derivative work only applies to the pattern not the finished piece cut from wood. Is this correct? If not there are a whole lot of us in violation.

[orangeman]

For what it is worth:

 

I recently bought an image (not a puzzle pattern) for $10 that gave me the right to use it commercially.

 

The image lent itself to a puzzle with little modification. So I cut the puzzle with an oval frame and backing.

 

I sent the finished puzzle to the company I purchased it from and asked if I could submit it to a magazine for publication.

 

The magazine always copyrights the images and patterns.

 

Answer: Absolutely NOT.

 

The original artist of the image would have to do the submitting and agree to the terms of the magazine.

 

I thought it was a dynamite puzzle but it did not sell at $20 at a recent craft show. Now I'm giving them away.

[Travis]

...

 

 The real question is when does it become public domain?  According to Travis's answer if a 40 year old designer made a pattern today and lived to the ripe old age of 90, then add the 75 years to the 50 years this designer lived after designing that pattern and publishing it and that pattern would become public domain in the year 2141.   One of my questions was touching this in what happens to that patterns status IF the designer is dead and does not have an estate for which this pattern would belong to, would this pattern belong to the public domain sooner than would otherwise be?

 

DW

 

Correct, it would fall into public domain in 2141, regardless of the pattern was passed on to the estate.  You can thank the fine folks at Disney for this law.  You can imagine what would happen if a certain 6' rodent goes into public domain.  However, things like our favorite mouse fall under trademark laws, which is even more complicated.

 

I think there is a limbo land where the estate has to take an active role in renewing the copyright, though.  I'm not sure how that works.  HP Lovecraft's stories, for example, the estate actively renews the copyrights and polices the usage rights.

 

 

Just to clarify, the derivative work only applies to the pattern not the finished piece cut from wood. Is this correct? If not there are a whole lot of us in violation.

 

 

Technically, yes.  The pattern is the creation/art and the cutting is the derivative work.  But it is understood that the creation of the pattern is for others to create the finished product.  So the copyright holder licensed the end user with the right to reproduce their work in a certain way.  Sometimes,  you'll see restrictions the pattern such as "Only for personal use" or "Not to be used for lasers," etc.

 

On SSV, the User Guidelines say that if you post a pattern to SSV, you are giving permission to SSV to distribute the pattern (IE, have it on our website) and SSV members are allowed to cut it.  But the pattern designer may put on restrictions like "Personal Use Only" if they'd like.  However, a person may not download the pattern and post it on other sites or sell the pattern itself.  

 

BTW, I think it's a good practice that if you intend to sell the cutting (craft show, Easy, your website, etc), you should contact the designer and ask if that's OK.  Most of the time it is.  Permission to sell the final cutting is implied, but it's nice to ask.

[Phantom Scroller]

The copyright posy will hunt you down and they will find you and they will kill you SLOWLY. Sorry I'm not helping much am I dad              I NEED TO GET A LIFE!

[zimmerstutzen]

There is a host of complications in just the US copywriter law, not to mention the 6 to 8 significant Amendments over the past 50 or 60 yrs. Many copyrighted items from the 1940's are no longer protected because copyright renewals had to be filed in the 1970's, howver, there is little way to tell because there is no index of renewals. A modification of a public domain design can be copyrighted, but just as to the modifications. In this day and age, in which computers can be used to stretch and broaden a design, it is difficult for anyone to prove a copyright infringement where the design has been even moderately altered. Also beware of marks or letters left in a design to prove copying. The ADC map of my neighborhood shows a small non existent pond on my property. Never been a pond on the top of my hill. It is there to catch copy thieves.

[zimmerstutzen]

Just as an example of how complicated the copyright aw can be read this:

 

http://www.slate.com/articles/news_and_politics/explainer/1999/12/why_wonderful_life_comes_but_once_a_year.html

 

Also, I studied the history of the song "A Lion Sleeps Tonight."  It was originally a Zulu folk song.  A version of it appeared in the first Boy Scout Manual as a scout marching song with words similar to the Zulu words, written by Robert Baden-Powell, who heard the Zulu version while serving the British Army during the Boer Wars.  .  In 1939, in South Africa, a gent named Solomon Linda and his group recorded their arrangement.  It was Solomon;s arrangement that had the high pitched falsetto yodel type performance. (You can listen to the original here:  

      )   The record had few sales, but a copy found it's way to Decca records, where it sat for ten years and then was to be thrown out.  A music historian was given the pile of trash records.  He approached a musician named Pete Seeger whose folk group, the Weavers, recorded it as Wimoweh in the early 1950's.  Several Groups recorded versions of the song and then in 1961, a Brooklyn doo-wop group recorded the song as In The Jungle the Lion Sleeps Tonight.  That recording and arrangements made a few reprisals in popularity over the years and then was used by Walt Disney Company in the movie the Lion King.  Each time the song was recorded a different copyright attached, sometimes just to the changes.  Solomon Linda sold his rights to the song in 1939 for the equivalent of about $2.50.  However, under a fluke of law, the rights reverted back to his heirs 25 years after his 1961 death, so in 1986, the family became owners of his arrangement again.  Around 1999, the South African Gov't, in trust for the destitute heirs, sued for copy right infringement, Sued Everybody, Capitol, Decca, Disney, etc.  The case was settled for 11 million dollars payable to the family of Solomon Linda.     

 

As you can see, it gets very convoluted.    

[crupiea]

I have stated before that i have a different opinion on this topic.

 

I used to sell ebay logos made of wood on ebay.  never said a work about it and certainly they are monitoring this stuff.  look on ebay for ebay logos now and you will see page after page of home made ebay stuff.  Also used to sell Raiders logos on ebay, sold alot of them. 

 

Another thing is tattoos.  You can see people wearing star wars tattoos and they are clearly star wars or disney or whatever.  Disney certainly knows about this but they never go after the artists who are making alot of money with this artwork, nor do they go after the people wearing the art.

 

Of course you cant say officially licensed star wars tattoos or something like that.

[zimmerstutzen]

The fact that a copyright owner does not pursue every violation is irrelevant.  Some owners actually encourage free use and do not care.  That does not change the fact that for violating another's right, the copyright owner might sue and end up owning your house. 

 

Frankly, the damages to be collected for infringement are usually pretty low.  After all, how much did you make selling 5 copies of a Chevy emblem?  How much did chevy lose with those sales.   In this day and age, it is so easy to find pictures and drawings on internet sights that are free to use, even to use commercially.  Altering a design, either digitally or by hand, is easy.  There is little reason to infringe a copyright.

[Lucky2]

Well Tony, it's up to you to think what you like, but, just because you think it, doesn't make you right. Yes, you can get away with making a few copyrighted items, but, if you make enough of these items to make a large amount of money you could be sued. Just because you don't hear of a lot of these cases, doesn't mean that it is alright to do so. I know from personal experiences, that they will come after you. They did me and my daughter, and it's a bit nerve racking. It was explained to me why they came after us, and the explanation was, that we were making to much money and not sharing it with the copyright holder. Legally, I cannot mention the name of the company, but, they are fairly large in size. We never thought that we would run into this kind of issue, we were of the frame of mind that we were to small for anyone to care about what we made. We were wrong, but, thankfully it didn't cost us much. But, it did teach us a lesson. I do hope that your way of thinking, doesn't get you in trouble.

Len

[DWSUDEKUM]

Really when you get down to the brass tacks of the issue it is all about the Benjamins.  The more dead presidents you bring in the more interest that the copyright holder will have.  Not always the case though, several companies, Harley Davidson, some of the Nascar teams, the NFL , NBA can be sticklers for use of copyrighted material.  My solution is for me the only solution.  I design my own and if I use someones image I get written permission to do so or I use honest to goodness public domain images.  Better to be safe than sorry.

 

DW 

[125 CSL]

Interesting topic. Have been wondering about use of some on line patterns. 

[Lucky2]

Interesting topic. Have been wondering about use of some on line patterns. 

Go ahead, use those patterns that's what they're there for. Just don't claim the pattern as your design, give credit to the pattern maker. Most of the patterns that are on the internet that you can download for free, won't be an issue unless you claim you made the pattern. Mainly what this discussion is about, is the use of patterns that were issued in a magazine that is no longer in business. 

Len

Edited April 17, 2016 by Lucky2

[Barry5180]

I am not sure that that treatise on the subject is totally correct.  The thing that I have seen and read is that there is such a morass of laws that no one really knows what is covered and what is not.  Thing is the original copyright laws were written in an age where we did not have digital media and electronic ways of distribution.  The copyright laws have been tacked on to the original time and time again both here in the US and Abroad.  There are even companies and countries out there that do NOT abide by these laws.  China, North Korea and a few others come to mindmin this regard.  There needs to be a concerted effort to standardize the copyright law for everyone, worldwide. 

Oddly enough, copyright law in it's base form is fairly simple. Once something has been created in tangible form, the creator holds the copyright to the item for their lifespan plus 70 years. It does not matter what form it is in, whether recorded, digital, written, photographed, whatever. That's it in a nutshell. As for other countries not abiding by US copyright law, please read this Wikipedia entry concerning the Berne Convention which requires all signatory countries to recognize copyrights held by the citizens of all other signatory countries. https://en.wikipedia.org/wiki/Berne_Convention

 

This is the link to the Wikipedia entry with the list of signatory countries of the Berne Convention. https://en.wikipedia.org/wiki/List_of_parties_to_international_copyright_agreements

 

Oddly enough, the US did not become a signatory to the Berne Convention until 1989. Agreeing to the Berne Convention required a partial rewrite of US copyright law, including the requirement that all copyrighted material be registered. This no longer applies.

 

So getting back to the original topic of copyright, unless you are using something listed as public domain to make patterns from, it is safe to assume it is copyrighted and you would need permission from the copyright holder to use the image.

 

Oddly enough, gaining permission is fairly simple. 

1. Determine who the copyright holder is

2. Contact them in a tangible form (email, snail mail, facebook, etc)

3. Introduce yourself, explain what it is you do (attach an example if able), and explain how you wish to use their work; to make patterns for sale, to make patterns to post on websites such as SSV, or for personal use only

 4. Explain that cuttings will be made from the patterns (attach example if possible, preferably a cutting of the pattern example you used) and that in many cases those cuttings may be sold at craft shows, etc.

 5. Ask what if any credit they would like on the pattern. Some don't care, others want their name or even website added to pattern.

 6. Thank them for their time and consideration

 

I have had a couple of copyright holders turn me down flat, but most of the time they are happy to allow you to use their work for patterns, especially since you respected their copyright and asked first. (rare thing these days) Some have said pattern can not be sold, others have said cuttings and patterns cannot be sold. Always save all correspondence from each copyright holder as proof of the granted permission.

 

Hope this helps someone

[zimmerstutzen]

Barry5180, hey neighbor.  What you state is 98% correct for anything in 1978 or later.  The law before that time is indeed a morass, with many unrenewed copyrights being lost after 28 years.  Some however renewed for another 28 or 67 years depending on when created and renewed.  And the copyright law specifically gives an example of a modification of a copyrighted item continuing to have the modification copyrighted even though the original is not. There is a point at which under prior law, all copyrights expired before the recent changes.  I do not remember the exact date, but as I recall, items published before a certain year , perhaps 1934, are in the public domain.  The problem is locating original art published before that date.  Any reprint may have copy protection alterations.  

[Barry5180]

Hey Perry, nice to meet a neighbor. The year you are looking for is 1923, but that is only published items. Unpublished items fall under the creator lifespan plus 70 years. My major point above for everyone was that unless it specifically listed as public domain, scrollers should assume the item is copyrighted and seek to get permission for use. I've already received permission in the past from Getty Images to use a couple of their images. Most copyright holders are thrilled someone even bothered to ask, and that makes it easier for them to say yes.

 

Where it gets really complicated is things that are trademarked. Corporate logos are the biggest issue for most scrollers and pattern makers. Let use the #3 Goodwrench Chevrolet driven by Dale Earnhardt Jr. as an example. You could create a pattern of the car and the #3 on it, but you would have to leave off the Goodwrench logo as well as the logos of the secondary sponsors since all of them are trademarked. Basic shapes could be used to denote where the logo is, but not the logo itself. The same goes if you're trying to do a pattern of a Harley Davidson motorcycle, the shape of the logo is ok, but you can't use the words Harley Davidson within that shape. The simplest way to avoid trademark violation issues is to stay away from anything with a logo. This applies to team names as well. They are all trademarked.

 

I had a long chat with a member of the NASCAR licensing dept. and another individual at Harley Davidson. It is definitely beyond the means of most scrollers and pattern makers to afford the licensing fees associated with being able to use a trademarked item in a pattern.

 

Barry

[DWSUDEKUM]

Barry that is very much my point of contention when I brought the subject up.  I have seen folks do logos and other clearly copywritten objects and for the most part what they are doing is infringing on the copyright of the holder, however, most but not all will forgive individual use but will draw the line on commercial use without prior agreement.  A lot of times it means a great deal of money has to change hands.  So I brought up the subject to get the newer scrollers up to speed on what is and what is not safe and permissible on usage.

 

DW