Copyright Crusade
(originally featured in YMN August 2007)
Don’t commit pattern piracy: Retailers must
defend and protect designers’ copyrights.
By Cheryl Krementz
Pop quiz: A customer who’s been thumbing through a
book approaches you and shows you a pattern she’s interested
in. “I’d like to knit this sweater and buy the
yarn for it,” she says, pointing to the page and referring
to a specific brand on your shelves. “But I’m
not going to knit anything else in the book and I’d
rather not spend $29 for one pattern. Can you make a copy
of it for me?”
You respond by saying:
A) “Sure thing, I’d be happy to.” You
then crack the binding, flatten the page on your copier
and blithely press the button.
B) “I’m really not supposed to, but.…”
You then look around sheepishly to make sure no one’s
watching and acquiesce to the request.
C) “I’m sorry, I can’t. Copying patterns
is illegal.” You then engage the customer and discuss
options that might make the idea of buying the book more
palatable.
If this scenario were real and you answered anything but
C, you’d be worse than wrong; you’d be breaking
the law and committing contributory copyright infringement,
a crime punishable by imprisonment, monetary fines or both.
“Would you go into a Williams-Sonoma, look at the cookbooks
and say, ‘I really like this punch recipe; would you
photocopy it for me, please?’” posits Trisha Malcolm,
vice-president and editorial director of SoHo Publishing Co.
(parent company of Vogue
Knitting and Sixth&Spring
Books). “Of course you wouldn’t. Why is it
acceptable then to ask in a yarn shop? Why do so many knitters
think patterns have no value? When copyright is not respected,
the livelihoods of a lot of people who publish knitting patterns—the
designers, the pattern writers, the pattern checkers, the
people who draw the schematics and charts, the photographers,
the stylists, the layout people, the editors, the proofreaders—are
on the line.”
Whatever excuses retailers lob to feebly explain their copying
of patterns (from “I didn’t know it was illegal”
to “If I don’t make a copy I’ll lose a yarn
sale/the shop owner three blocks over will do it instead/my
customers will shop online after downloading free Internet
patterns”), the fact remains that upon publication,
every knitting and crochet pattern in your shop—be it
from a book, magazine, yarn company, independent designer
or website—is almost certainly protected under the United
States Copyright Act. Copying a pattern robs the copyright
holder of her rightful profit—in knitting terms, typically
a pittance of $2 or less per sale. “We should be thankful
for the designers who share their talents through their books
and value that,” says Melanie Falick, editorial director
of STC
Craft/Melanie Falick Books. “They’re not going
to continue to write books if they can’t make any money.
We as publishers can make books only if people buy
the books.”
“Infringement is akin to shoplifting,” says Jason
Krellenstein, a South Salem, New York, attorney who practices
in the area of intellectual property. “Copyright law
is intended to protect people who innovate. Retailers shouldn’t
be doing anything that exploits a designer’s work for
their own personal gain. They shouldn’t be copying patterns
and giving them away without permission to do so, and they
should discourage that action if it rears itself in their
stores. They shouldn’t be preparing booklets or kits
containing copies of other people’s protected work.
They shouldn’t be cutting up a book or magazine and
copying the patterns for individual resale to customers. They
shouldn’t be copying and distributing patterns for classes
or samples without permission from the designer or publisher.
Regardless of the source and whether or not they accessed
it for free, retailers are well advised to remember that each
of these patterns represents someone’s creative endeavor,
someone’s exclusive property.”
FROM THE HORSE’S MOUTH
A finished book, magazine or pattern indeed represents a
very personal business endeavor for the designers involved.
When that work is illegally disseminated, “it’s
hurtful. You feel violated,” says designer Nicky Epstein,
no stranger to finding herself on the short end of copyright
infringement: Two separate Internet sellers were recently
bounced off eBay and Google for selling counterfeit CD-ROMs
containing entire scanned copies of all three books in her
popular Knitting on the Edge series. During her career
Epstein has seen other designers take well-known patterns
of hers, change a stitch sequence and successfully sell them
under their own labels; yarn companies with which she’s
worked have kitted her designs without recompensing her. She’s
confronted an international author who apologetically admitted
to having been asked to “write like Nicky Epstein”
by an overseas publisher who misappropriated many of her original
designs; an e-tailer claiming to have sold 100 kits of her
felted Trellis bag “blatantly lied” to her face,
telling Epstein that a copy of the sold-out issue of Vogue
Knitting in which the pattern appeared was included with
every order.
“There are the people who rip you off and know exactly
what they’re doing,” says Meg Swansen, owner of
Schoolhouse Press,
who constantly sees the techniques and patterns of her mother,
Elizabeth Zimmermann, used illegitimately. “Since the
advent of the Internet, people feel entitled to free stuff
and resent paying for it. But there are also the innocents
who have no clue. They’re just copying because they
want the pattern.”
Says Epstein, “One of the biggest culprits is the guild
that buys two copies [of knitting books and magazines]; that
means they have a library and can photocopy what they want.
But here’s the innocent part of it: My aunt, who started
knitting two years ago, took all my books to her church group.
She called me and said, ‘Oh, Nicky, everybody loves
your books. So-and-so borrowed them and she’s copying
the patterns she wants.’ I told her, ‘You’re
taking food out of your niece’s mouth.’ She was
so upset.” Last, Epstein says, are the people who just
don’t seem to care. “I was at the Knit-Out in
Washington, D.C., and four women were sitting in front of
me copying patterns out of my book. I couldn’t believe
the blatant thievery. I said something about it, but they
looked at me as if I were stupid. Like, ‘What’s
wrong with what we’re doing?’”
Recourse for individual designers is difficult. “For
me to sue someone, the cost of the legalities would be prohibitive,”
Epstein says. It’s a quandary many designers face when
their work has been misappropriated: weighing the risk of
an expensive lawsuit they may well lose against doing nothing.
To sustain the visibility of her copyrights, Epstein is currently
working on individual pattern leaflets of her most popular
magazine designs. She expects these leaflets to dispel the
“but-the-issue-was-sold-out/out-of-print” excuse
for copying.
ON THE FRONT LINES
“Without realizing what we were doing, we actually
did infringe on a copyright one time,” says Linden Ward,
co-owner with Beryl Hiatt of Seattle’s Tricoter. The
two have since co-written a series of Tricoter books, giving
them a dual perspective on author/retailer copyright issues.
“An author phoned us and very nicely took us to task
for it, saying, ‘I know a customer asked you to copy
this pattern. Every time you do that, you’re taking
money out of my pocket.’ We felt so horrible about it
that even before we started writing our own books we developed
a policy and hung up a printed sign that said, ‘Due
to copyright laws, we cannot make copies of any publication
still in print.’ We took a real hard line and were concerned
at first that our book sales were going to drop. Instead,
they doubled. Copying doesn’t help you; it doesn’t
help the authors. You’re really undercutting yourself
when you do it. We won’t even copy our own
patterns.”
Jordana Jacobs, who with Julie Carles co-writes the successful
Yarn Girls series of books, takes advantage of their copyright
privileges by selling individual Yarn Girl patterns at their
shop, New York’s The
Yarn Co. “We can do that because it’s our
book,” she says. “I’d like to sell the whole
book, but I’d much rather sell yarn, because that’s
how I make my money.” While book sales on the whole
are strong at The Yarn Co., that’s not the case at yarn
shops universally [see “Every Day I Write Off Books”
in YMN August 2007], and that, believes Monica Champion,
is what propels many retailers to say yes when a customer
asks them to infringe.
“It’s about the fear of losing a sale, a reaction
when someone’s in front of you saying, ‘I don’t
want to buy the whole book,’” explains Champion,
owner of Why
Knot Knit in Atlanta and Highlands, North Carolina. “There’s
no use pretending it doesn’t happen. Knitters verbalize
it two or three times a week. And there’s only one answer
to that question: ‘No.’
“I don’t get upset when people ask me to copy,”
Champion continues. “I say, ‘What if we gauge
out a different yarn to help offset the price of the book?
Let me work harder to come up with some other options for
that garment.’ And they grumble, but I rarely lose a
sale.” And she has no problem approaching a customer
hand-writing notes out of a book and stopping the act, playing
the victim by saying, “They’ll revoke my book-selling
license if you do that.” She’s brought her staffers
up to speed on copyright issues and has warned them that copying
is a terminable offense. “You don’t change someone’s
values in a three-minute retail moment,” Champion opines.
“But if I compromise my own values, I’ve got to
live with that.”
Meg Swansen believes that most retailers are like Champion.
“They know exactly what’s going on and try to
defend the law. I have no quarrel with shop owners at all.”
PARAMETERS, PERMISSION AND
PENALTIES
Beyond copying patterns for customer use, retailers should
be watchful about other infringement pitfalls that lurk in
common practices. Permission must be obtained from the copyright
holder before a shop owner copies a pattern to stick in a
kit, or copies a pattern to distribute to a class or knitting
circle. Even if the retailer believes she’s not making
any money off the pattern, says attorney Jason Krellenstein,
these examples do not fall under the much-discussed (and much
misunderstood) “fair use” exemption: “Fair
use is intended to balance the unquestionable societal benefit
of some kinds of uncompensated use of copyrighted material
against the copyright holder’s exclusive right to profit
off her work. Research, for example, or nonprofit, noncommercial
instruction, in each case involving copyrighted material,
may not be infringement even if the researcher or school did
not obtain permission from the copyright holder, because these
kinds of uses fall within the ‘fair use’ exemption.”
Even if you are not selling the copied pattern, “You
have to look a bit deeper and see if you are indirectly profiting”
by exploiting, say, the knitted-up or kitted-up design to
sell yarn. “Designers and distributors are all too happy
to exploit their work in any number of ways and work with
the retailer to find a way to do that,” he says. That’s
why publishers and yarn companies often have a prescribed
arrangement with their retail clients, allowing them to make
up store samples and/or teach classes based on a pattern,
as long as the cost of the book is accounted for. If not,
says Krellenstein, “Don’t be afraid to ask. Initiating
and cultivating a relationship with publishers’ permissions
departments, designers and distributors allows everybody to
be comfortable that the copyright is being honored and protected.
You can’t discount a good reputation for personal integrity.
At the same time, retailers who are violating copyright on
a routine basis, that speaks volumes about their business
practices. It may not catch up with them rapidly in a financial
sense, but people are going to find out.”
If a designer or publisher is impelled to institute a lawsuit,
says Krellenstein, “There are three kinds of infringement
for which a violater can be liable. With direct infringement,
a retailer is ‘hands-on’ making and distributing
copies without permission. Contributory infringement
requires a retailer to be aware of the infringement and either
assist or facilitate it or otherwise materially contribute
to it by, say, allowing a freelance instructor or a knitting
circle to use the store’s machine to copy patterns included
in books sold by the retailer. The third variety, vicarious
liability, occurs when a retailer is in a position to
supervise the infringing conduct and also financially benefits
from infringement. This may occur when a retailer stocks a
kit containing illegally copied knitting patterns.”
Penalties range from a basic injunction to cease the infringing
conduct to seizure of knocked-off products (think pirated
CD-ROMs) to monetary damages to criminal sanction, which includes
criminal monetary penalties, forfeiture of infringing materials
and the equipment used to make said materials, and imprisonment.
According to Krellenstein, monetary damages can be calculated
in two ways: lost profits and statutory damages. The former,
he says, is “fairly straightforward in theory—what
profits would have been made, less the expenses the copyright
holder would have incurred.” The latter is an amount
fixed by law and is useful when a copyright holder can’t
show lost profits yet still wants to make her case. Statutory
damages range per infringement from $200 all the way up to
$150,000. And to top it off, the court can award “the
kicker of attorneys’ fees,” says Krellenstein.
“The law permits consideration of whether the infringement
was willful or innocent. An innocent infringer may be able
to argue successfully for a much lighter penalty. But the
court is going to throw the book at a willful infringer. With
knitting patterns, you may not be talking about huge ducats
in terms of lost profits, but the court will seize upon the
statutory penalties and attorneys’ fees as a means to
deter future infringement.”
“There are lawsuits brought against people who steal
music. This is no different,” says Monica Champion.
“You go to the shows and meet Nicky and Debbie [Bliss]
and Cornelia [Tuttle Hamilton]. They’re superstars to
you, but they’re real people with families and bills.
They come to the shop and teach and graciously don’t
try to tell me my business. I’m so appreciative of what
they do. These are the people who respond to your customers’
e-mails. That freaky chick who comes in and drives you crazy?
Now she’s e-mailing Sally Melville every day. These
guys stand behind us. We have to stand behind them.”
COPYRIGHT ABC’S
Copyright, says attorney Jason Krellenstein, is a “nuanced
statute that affords legal protection to what the U.S. Copyright
Office deems ‘original works of authorship, including
literary, dramatic, musical, artistic and certain other intellectual
works.’” Knitting patterns fall under the category
of “two-dimensional works of applied art, which includes
technical drawings.” A work must meet three general
standards for copyright: 1) It must be original. 2) It must
be expressive. 3) It must be fixed in some tangible medium
of expression.
For a design to be considered original, says Krellenstein,
“a designer has to have contributed something creative
to the work, put her spin on it, embellished it in some way.
Sometimes you see on the blogs, ‘If you change it by
10 percent, it’s original.’ That’s a common
misconception; there’s no quantum. I will say that the
standard for originality is pretty low, and I don’t
mean that in a disparaging way. Because the law is intended
to protect people who innovate, you don’t have to innovate
that much to get that protection.
“Expression is sometimes defined as ‘manifestation
of an idea,’” continues Krellenstein. “An
idea can’t be copyrighted; expression of that idea can.
Copyright in visual work is not going to apply to a color
or a fundamental geometric shape, but it may protect the combination
of those basic elements—shape and color—into a
pattern.”
Common knitting techniques, methods and processes are not
eligible for copyright, which is why the third standard stipulates
a work be “fixed in a tangible medium”—in
the case of knitting, a published pattern (including original
patterns published online). “With knitting, where you
have techniques and skills that date back forever and also
a venerable oral tradition,” says Krellenstein, “there’s
a lot of general knowledge out there that’s not copyrightable.”
Although copyright attaches to a pattern upon publication,
Krellenstein strongly suggests that an independent designer
register his or her work with the U.S. Copyright Office: “You
get really good whistles and bells with registration—the
ability to enforce the copyright in federal court, plus the
ability to try and obtain attorneys’ fees if you win
a case, which has a big deterrent effect.” Registration
information specific to knitting designs can be found at copyright.gov/register/visual.html;
the current fee is $45.
“At a minimum,” says Krellenstein, “everyone
should put a little circle symbol, the year of first publication
and the name of the copyright holder on the design, on the
blog, on the page, wherever the copyrighted material is appearing.
This puts the world on notice that you’re savvy about
protecting your property. It’s a free, simple deterrent.
THE INTERNET ANGLE
The preponderance of free patterns on the Web has thrown
a new wrench into the issue of copyright, leading people to
believe they can disseminate any and all information, well,
freely. Not the case, says attorney Jason Krellenstein: “Retailers
have to separate themselves from the idea that something’s
not copyrighted just because they accessed it for free on
the Internet. A lot of designers are eager to distribute their
work for free, but free distribution does not diminish the
designer’s sole ownership, and it does not mean that
someone has the right to give out or sell copies without the
designer’s consent.”
Says Jenna Wilson, a Canadian intellectual-property attorney
who frequently blogs about copyright issues as The
Girl From Auntie, “When it comes to retailers leveraging
the Internet to boost their own sales—by offering customers
Web access in the store to print out patterns to use with
yarn purchased at the store—there’s a fine line
between permitted use and inappropriate use, and sometimes
it’s hard for the retailer to know if she’s doing
the right thing. For example, a lot of publishers use ‘not
for commercial use’ language on patterns or websites
without really explaining what it means.... Some customers
seem to think it means that the garment cannot be knitted
up and sold; others think that it means copies of the pattern
cannot be sold; and still others think that it means that
the pattern cannot be used in affiliation with any commercial
endeavor; that is, a class using a pattern without prior permission
from the copyright owner. This is not always a copyright issue;
sometimes it’s a contract (i.e., website terms of use)
issue, and different publishers can treat this issue in dif-ferent
ways. The safest thing a shop owner can do is to contact the
publisher and determine what usage of the publisher’s
website or patterns is acceptable. The best thing for a publisher
to do—and few do this—is to provide a clear statement
on their websites or in their publications explaining exactly
what uses are permitted.”
Another unkosher Web practice common among e-tailers and
bloggers alike is the scanning in and posting of pictures
of designs from magazine and book pages without express permission
of the copyright holder. “It’s really difficult
to know how to deal with this, because viral marketing is
a good thing for publishers,” says Trisha Malcolm of
SoHo Publishing. “But the only fair and right thing
for people to do in a situation like that is to link back
to the source,” giving credit where credit is due. Again,
agrees Krellenstein, a simple phone call or e-mail query to
the copyright holder will likely yield approval and erase
any possible infringement issues.
“Although the Internet is blamed as the tool of copyright
infringers, it’s also the tool that brought copyright
awareness to the crafting community,” says Jenna Wilson.
“Because the technology now exists to make anybody a
publisher and distributor of valuable and interesting content,
creators’ rights have become more important to the crafting
community. And they have become that much more personal: Individuals
realize that it could be their intellectual property
that needs protecting, not just someone else’s.”
COPYRIGHT RESOURCES
• U.S. Copyright Office: copyright.gov
• Online-copyright FAQ: chillingeffects.org/piracy/faq.cgi
• The Girl From Auntie’s Copyright for Crafters:
girlfromauntie.com/copyright
• “Copyright and Knitting,” by Lance D.
Reich, published in Vogue
Knitting
Winter 2005/06
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