Copyright Questions

[Barry5180]

This is an important issue DW and I would love to see the topic discussed more often. The particular problem for us as scrollers and members of a site such as SSV, is that when we create a pattern and post it here, it is no longer individual use. We have just distributed it via the internet to a virtual unlimited number of people. Individual use would be if I did a pattern of Mickey Mouse and did not upload it. I could make a cutting for myself or a family member in my household, but as soon as I give it out to anyone outside my house, I have violated Disney's rights. It's the same thing as burning a copy of a music cd and giving it to a friend.

 

It is important that current as well as future pattern makers do their due diligence to ensure that they are not violating copyright or trademark law. I'm sure most of us who have been scrolling a while all know at least one pattern designer whose work has been distributed or put up for sale by others without permission. As a community we get upset and sometimes outraged at a blatant violation of copyright law when it's one of our own. I believe it's just as, if not even more important that we, as a community do our absolute best to respect copyright of all individuals that create work that we may use for patterns. If we act professionally in our use of these items and in dealing with the creators, we will all find it much easier to gain permission to use others work in the future.

 

Barry

[zimmerstutzen]

Logos are not protected from some reproduction and use.  Just as an example, I could never take a picture of a famous automobile, because the reproduction photo would contain the likeness of the logo.  Obviously that is not a violation of copyright laws.  It comes under a partial exemption from the copyright law called "fair use"

 

§ 107 . Limitations on exclusive rights: Fair use⁴⁰

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

 

As an example:  In the 1970's Volkswagon ran a few ads showing a Volkswagon floating in water.     Way back when Ted Kenndy's companion drown when Ted drove off the side of a bridge, Mad magazine ran a a full page ad showing a Volkswagen floating in a pond.  The caption said "Had Ted Kennedy been driving a Volkswagon, he'd be president today"  There was nothing Volkswagon could do about the use of it's logo or picture of it's car,  because it was fair use.   That particular issue is still a big collector item because of that ad.

[amazingkevin]

 

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

 

Most interesting reading thanks!

[zimmerstutzen]

If the owner of the copyright goes bankrupt and defunct.  The magazine did not design the "art"  a person did.  If the person did it for hire, then the company truly owns it.  If the person designed the art and then sold or licensed the art design to the magazine, it probably still belongs to the person, unless all rights were sold to the magazine.  Even if the company went under and no one acquired the company's rights to the artwork,    Somebody probably owns it.  The odds of them coming forward and complaining are slim.     I have a collection of old hunting and fishing magazines.  Most of those companies folded and ceased operations years ago.  There is a provision of the recent copyright law changes, that says if a work was published 95 years ago, there is a presumption that the work is in the public domain.   Hence the 1923 fail safe date that Barry5180 mentioned.   A magazine owner that I sometimes exchange ideas with, indicates that his legal specialist advised him that under the old copyright laws, the fail safe year is 1938 for published items.  because back then, at most it was 28 years plus a renewal of another 28 years and those lengths were not changed by later amendments.   

 

My father owns an original watercolor by a famous artist who died in 1985.  The watercolor was used in a magazine and then years later,  the magazine discarded it's old files containing the original artwork, drawings etc. Dad noticed the files being thrown out and took a couple of boxes of them.  he has some nice signed sketches by several wildlife artists.  The artists and/or the magazine probably own the copyrights, but Dad actually owns the original pieces.     No one can copy the originals without Dad's permission as owner. That person would also need permission of the copyright owner.  They could copy the copies from the old magazines however, but again, would need the copyright owner's permission.    

 

Lets say a hobby magazine published a design.  Isn't there a presumed permission that the subscribers are able to use that design?   After all that was the purpose of publishing the design in the magazine.   

[Barry5180]

Logos are not protected from some reproduction and use.  Just as an example, I could never take a picture of a famous automobile, because the reproduction photo would contain the likeness of the logo.  Obviously that is not a violation of copyright laws.  It comes under a partial exemption from the copyright law called "fair use"

 

§ 107 . Limitations on exclusive rights: Fair use⁴⁰

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

 

As an example:  In the 1970's Volkswagon ran a few ads showing a Volkswagon floating in water.     Way back when Ted Kenndy's companion drown when Ted drove off the side of a bridge, Mad magazine ran a a full page ad showing a Volkswagen floating in a pond.  The caption said "Had Ted Kennedy been driving a Volkswagon, he'd be president today"  There was nothing Volkswagon could do about the use of it's logo or picture of it's car,  because it was fair use.   That particular issue is still a big collector item because of that ad.

 

 

It does constitute fair use, however in this instance, the magazine was lampooning Ted Kennedy and was depicting the Volkswagon exactly as the add portrayed the car. They were in fact unintentionally advertising for Volkswagon. Plus, the magazine wasn't selling cars.

 

Don't confuse Trademark and Copyright though. Trademarks do not fall under fair use. There are two types of trademark. The ™ symbol which denotes an unregistered trademark. These are considered common law trademarks and have not been registered through the US Patent and Trademark office. Generally these will be found in a local or regional setting such as a regional company that only serves one or two states or even counties. An unregistered trademark does not necessarily grant the owner as much protection as a resistered trademark. Registered trademarks, denoted by the ® symbol have been filed with the US Patent and Trademark office and give the holder exclusive rights to the trademark. Trademarks can be licensed to another entity for use, such as The Lego Group purchased a license from Lucasfilm in order to produce the Lego Star Wars sets.

 

Barry

Edited May 18, 2016 by Barry5180

[Barry5180]

My father owns an original watercolor by a famous artist who died in 1985.  The watercolor was used in a magazine and then years later,  the magazine discarded it's old files containing the original artwork, drawings etc. Dad noticed the files being thrown out and took a couple of boxes of them.  he has some nice signed sketches by several wildlife artists.  The artists and/or the magazine probably own the copyrights, but Dad actually owns the original pieces.     No one can copy the originals without Dad's permission as owner. That person would also need permission of the copyright owner.  They could copy the copies from the old magazines however, but again, would need the copyright owner's permission.    

 

Lets say a hobby magazine published a design.  Isn't there a presumed permission that the subscribers are able to use that design?   After all that was the purpose of publishing the design in the magazine.   

 

The distinction is that if I wanted to copy your dad's original, I would need his permission to access the copy since I simply can't walk into his house and take it. Both your father and I however, would need the copyright holder's permission in order to copy it as he does not own the copyright for the piece either.

 

Unless the magazine specifically says that the design may be copied by the subscriber, the answer would be no. I have seen many publications where a design has been shown for illustrative purposed within another article. That design would be protected by the publisher's copyright.

 

Barry

[NC Scroller]

I am NOT a lawyer but if the copyright owner put the original in trash in a public place they in fact gave up all their claims and rights. The current holder is legal owner.

[RangerJay]

An interesting story that made our national news a week or so ago - although the word "copyright" was not mentioned:

 

http://www.cbc.ca/news/canada/new-brunswick/sussex-artist-portrait-controversy-1.3578619

 

 

 

Jay

[zimmerstutzen]

I think it was Country magazine that ran a design every month with instruction about colors etc. Expressly intended for readers to copy.