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Mary Corbet

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I learned to embroider when I was a kid, when everyone was really into cross stitch (remember the '80s?). Eventually, I migrated to surface embroidery, teaching myself with whatever I could get my hands on...read more

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Reader’s Question: Copyright in Embroidery

 

Once in a while, I take questions that come into my inbox and turn them into blog posts. The other day, I received a couple questions about copyright in embroidery. I thought it might be an interesting topic to open up.

Please keep in mind, I’m only writing from the standpoint of US law, and not as an expert at it, either, though I did consult an expert to make sure I wasn’t saying anything off the mark, here. Still, I’m open to correction!

By reading the copyright laws and understanding certain terminology and applying a little common sense, what’s what in copyright issues for embroiderers should be pretty clear.

Shisha Stitch with Paper

Can you Copyright an Embroidery Stitch?

The first question was whether or not one can copyright an embroidery stitch. The answer is no. An embroidery stitch is a process. A process cannot be copyrighted.

However, an image of a stitch, writings about a stitch, graphics or video relating to a stitch, and so forth, all fall under the protection of copyright, because this is authored stuff or artwork. But the process of creating a stitch cannot be copyrighted, because processes do not fall into the realm of the things that are protected by copyright.

For clarification on the above, see USC Title 17, Chapter 1, section 102(b), which reads: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the forum in which it is described, explained, illustrated, or embodied in such a work.”

Casalguidi How-To

If anything, the question of “ownership” of a particular stitch would fall in the realm of patent, but, really, the idea of patenting a hand embroidery stitch is, in my opinion, laughable. (Though it has apparently been done before.)

Why do I think it laughable to patent a stitch? Here are a few of my reasons:

First, when it comes to embroidery stitches, there isn’t much that’s really “new” to be discovered. New stitch combinations are based on well-known stitches that have been passed down for generations. I think it would be rather cheeky to claim “invention” on a new combination of old parts, when it comes to stitches.

Second, to what end would one patent a stitch? To keep it for the exclusive use of the patent holder? Just to forbid anyone else from using it without permission? And how does this benefit anyone, including the patent holder? If the benefit is supposed to be financial, will the cost of applying for, maintaining, and protecting a patent really weigh in favor of the “inventor,” especially if the “inventor” has to take to task anyone who uses the stitch?

Third, how can you possibly protect a patent on a stitch and make it clear that someone holds the patent to that stitch? It’s not as if you can put a patent number on the thread or the stitch or the fabric every time you use it. A patent gives the owner the right “to exclude others from making, using, offering for sale or selling the invention throughout the US or importing it into the US.” Exactly how can that be controlled on the process of a stitch? Every time the stitch pops up somewhere else, is the patent holder really going to say, “Wait! I have the right to exclude you from using that”? Furthermore, every time an embroiderer comes up with what seems like a new combination or a new stitch, is the embroiderer obliged to check to see if there’s a patent on it, before using it?

Anyway, the idea of patenting a stitch seems to me to be rather narrow-minded, to be extremely impractical, and, to put it frankly, silly.

Are Embroidery Patterns Protected by Copyright?

Copyright on Embroidery Designs

Yes, embroidery patterns (designs) are protected by copyright. Any piece of artwork falls under the protection of copyright, until it has outlived the time limitations of the copyright. To read about the duration of copyright, you can check out this information on the duration of copyright. (USC Title 17, Chapter 3, sections 301-305).

Sometimes, designers allow people to use patterns for free (for example, the Patterns section here on Needle ‘n Thread offers loads of free hand embroidery patterns for you), but these are always for personal use. If someone is allowing you to use a pattern for free, they aren’t giving you carte blanche to turn around and sell it to other people.

Do Embroidery Kits Fall Under the Protection of Copyright?

Nesting Place Embroidery Kit

Just as a kit has multiple parts, so does this answer! As discussed above, the design is under the protection of copyright, along with all the written instructional material, diagrams, photos, and so forth. But the concepts and the processes are not under the protection of copyright, because concepts and processes cannot be copyrighted.

In the photo above, you can see a kit for a needlebook designed by Bobbi Chase. There are lots of “concepts” in the above: a needlebook, a needlebook with birds on the front, a needlebook with wool thread embroidery on it, a needlelace edge on a needlebook, and so forth. None of these concepts are protected by copyright. If they were, then there could be no more needlebooks with wool embroidery on them – or rather yet, if they were, undoubtedly, the designer would be in violation of copyright, because certainly, someone else, somewhere, conceived of a needlebook with wool embroidery on it, long before the Nesting Place came to be. So you can see how the “concepts” can’t be copyrighted.

Even the color choices for the project do not fall under the protection of copyright, because a color scheme is a concept.

To clarify with a practical example:

You buy a kit by another designer. In the process of working it, you learn how to create an embroidered, braided edge on the outside of a scissor fob. You like that braided edge treatment! And eventually, you design your own piece to make into a kit – say, a needlebook – and you decide that, for the treatment of the edge, you’re going to use that nifty embroidered, braided edge you liked when you made that scissor fob.

Can you do that? Well, yes you can. What you can’t do is anything that violates copyright in the process. You can write your own instructions, use your own graphics and so forth, to teach others the process of creating that edge stitch, in your own design. But you can’t copy the design of the scissor fob, or any of the printed text, graphics, documentation, etc., for the scissor fob in your needlebook kit.

Biscornuphoto via So Happy on Flickr

The biscornu comes to mind, to clarify the above example. Someone, somewhere, made the first biscornu, with its characteristic offset backstitch edge and whipstitch join. The concept of the offset squares and the process of whipstitching the backstitched edges are not under the protection of copyright. And the biscornu has been duly disseminated around the globe, and adapted into all kinds of needlework.

The TNNA has an excellent brochure on copyright pertaining to the needlework industry available – it’s worth reading!

I hope this helps answer some of the questions floating around out there about copyright in embroidery. I’m completely open to comments, questions, discussions, and so forth, about the topic – feel free to use the comment area below, if you wish!

 
 

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(32) Comments

    1. By virtue of creating it, it already holds the protection of copyright. If you are disseminating the pattern in any way – whether electronically or in print – you should put a copyright attribution on it somewhere – the copyright symbol, followed by the year, followed by the name of the artist, writer, etc. (whoever would hold the copyright). This is not a “registered” copyright, but it falls under the protection of copyright by virtue of its being created. You can read about the attribution, etc., here: http://www.copyright.gov/title17/92chap4.html Non-registered copyrights may not have as “strong” a protection as a registered copyright (according to some), but the point is to be able to prove that you are the originator of the work, at the time you said you originated it. You do not have to register everything you create for a copyright – that would be impossible for everyone who creates anything copyrightable to do so, and the law allows for this fact. ~MC

  1. I’ve heard that you can make a copy of a pattern for marking purposes. Is that correct? It would seem that the greatest reason for the copyright is to prevent people from making money on another person’s work, so it would make sense that a working copy would be acceptable.

    3
    1. You can always make a working copy for your own use, as long as you paid for the original, and you’re not planning to sell your original while holding onto your working copy!

  2. “I think it would be rather cheeky to claim โ€œinventionโ€ on a new combination of old parts, when it comes to stitches.”

    I don’t think it’s cheeky…I think it’s dishonest. Passing something off as an original idea when it’s been mainstream for generations? Maybe the patent office needs to do some homework!

    4
    1. Hi, Julie –

      Hmmm… I see what you mean, if you’re talking about a stitch that’s been around forever. That would be dishonest, unless the person is Completely Oblivious. But I think what people who try to patent stitches are usually trying to patent are their new combinations that make up a “new” stitch that hasn’t been seen or used before (to their knowledge). That’s what I meant by “parts,” because most “new” stitches are merely combinations of old parts. So, in that case, I would say it’s not 100% dishonest – I would imagine the person trying to patent that “new” stitch or combination thinks that it is a great and unique thing. Problem is, how can you really establish the uniqueness of something like that?

      Here’s an example: combining a wooden plank and a fulcrum into a teeter-totter and trying to patent the teeter-totter as is would be silly. But taking the components of the teeter-totter and coming up with a variation on the teeter-totter that is unique would warrant, perhaps, a patent (especially, say, if the inventor were going to sell his version of the teeter-totter to playgrounds across the US). So the components have been around for a while, but his combinations and additions to those components are what make his teeter-totter unique.

      The problem with doing this with an embroidery stitch is that you can’t really establish originality on too many approaches to embroidery stitches – there’s no way to say this is “your” invention. However, that’s not what the patent office is concerned with. The patent office is concerned with whether or not someone else has patented it before, or whether or not there is a widespread use of it already documented. If there is a widespread use of it already documented and visible, then chances are, it’s not going to get a patent. But on a “just invented stitch” or combination by a given person, there may not be examples floating around, so it may still look unique. But … like I said… it’s just silly. If one person can come up with a stitch or combination of stitches, it’s likely another person can come up with the same thing, not knowing there was a patent on it, and disseminate it.

  3. Hi Mary,
    It looks like you’ve done your homework and gotten authoritative advice. As a retired Intellectual Property Paralegal (Patents, Trademarks and Copyrights) I can concur that copyrights only apply to “the written word, including music, by the way” so there’s nothing preventing someone from copyrighting a set of written embroidery instructions……. however, the subject at hand could “technically” be covered under a Design Patent. Patents cover: method and apparatus, (including the process), chemicals, plants and designs (i.e. for instance the design of a bottle of detergent,). But for the layman, for all intents and purposes, you “could” apply for a design patent….but to what end ? Doesn’t seem practical unless you plan to “mass produce” a piece and sell them. (??) A lot of effort and cost (obtaining the patent) and hardly seems likely that anyone is going to infringe upon it. That said….this does not preclude someone applying for one. Hope this is of some help. ..Judy in Pittsburgh
    PS As for trademarks or service marks, that’s another matter.

    5
    1. Hi Judy.

      Does this mean that an embroidery pattern is not protected by copyright laws? Only if it’s written? And maybe you can explain to me the difference between work produced before or after 1978 (http://www.copyright.gov/title17/92chap3.html) Does this mean that patterns produced before 1978 are not protected by copyright laws? The reason I’m asking is because I have found an image of an old 70s embroidered tablecloth online. I don’t know who designed it but I do know it’s made in the early 70s. Can I use that pattern and turn it into a pillow embroidery kit for sale in Europe?

      Thank you SO much if you can answer ๐Ÿ™‚

      Best regards,
      Ellisiv

  4. Oh boy! This is interesting. In Italy there are many embroidery stitches and/or techniques which are trademarked. A lot of energy is spent correcting, chastising, harassing and arguing with others who are believed to be infringing on the rights of these trademarks. Consequently stitches are renamed something else so as not to encourage attacks by trademark holders which results in much confusion when trying to categorize Italian needlework. Trademarks are jealously guarded. It is a *completely* different mindset.

    6
  5. Just for clarification’s sake, it’s my understanding that while a pattern can be copyrighted, that covers only the pattern itself and does not actually extend to works produced based on the pattern. In other words, you cannot reproduce or sell the pattern, but you can make something based on the pattern and legally sell it (whether or not the designer says “please don’t sell stuff based on this pattern).

    (Whether or not it’s ethical is another discussion entirely)

    7
    1. Hi, Melissa – just for the sake of clarification, are you talking about the “construction” pattern – like a sewing pattern – not the embroidery design (drawing), which is a different matter? In embroidery, we tend to use pattern and design interchangeably, so I guess a distinction should be made…

    2. When I have looked up copyright information on knitting and sewing patterns, the copyright extends to the finished product. The pattern may only by used to make items for personal use unless permission is given for others uses, such as making items for charity or sale.

      I have seen some designers include permissions with their copyright.

  6. I meant more the finished work. We discuss this sort of thing pretty often on Ravelry in reference to knitting patterns vs. the items we actually knit based off of the patterns. I guess a good embroidery example would be if you posted a pattern (that said copyright Mary Corbett, for personal use only), or even a pattern with some construction directions (like the kind that come in kits), and I actually made an embroidered item that was based off of that pattern – *legally* I believe I can still sell the item that I made (regardless of the designer’s wishes). I can’t, however, sell the pattern or reproduce it for other than personal use, since that is what’s copyrighted.

    9
    1. Actually, the the cooyright protecting the design (drawing) covers what can be done with derivative works. A drawing is not the same thing as a knitted pattern for constructing a sweater. So if I draw a flower and post it on my website, you can’t take my drawing of my flower, color it in and turn it into a greeting card and sell it, or turn it into a machine embroidery design and mass produce t-shirts with it, from what I understand, but I will look into this to make sure. The TNNA has a good brochure out on copyright in the needlework world that somewhat covers a lot of these questions. Here’s a link: http://c.ymcdn.com/sites/www.tnna.org/resource/resmgr/pdf/copyrightbrochure.pdf

      If you could take a drawing belonging to another and reproduce it in another medium to sell, then artists would really have little control over the drawings they produce.

      So I think there’s a definite difference here between the construction process of a knitted item, compared to the actual piece of artwork created by another. One would fall under design patent if it were to be legally protected (the construction of the knitted item) – and this rarely happens – but the other falls under copyright, and this happens automatically upon creation of the original piece of artwork.

  7. I am always quite careful about copyright issues, as I don’t ever want to be thought that I’m stealing another’s ideas for my own use. But I do have a few comments: First, if I take an embroidery design and alter it, how much do I have to alter it before I can call it my own design? Is it 10%, 20%, 30% or even more? And who determines this? Second, if I make an item from a pattern published as a design in a magazine, then donate said magazine to a public library where it is checked out and maybe several people make the same or similar item, is this copyright infringement? According to the TNNA brochure, sharing a design is considered copyright infringement. The brochure really isn’t consistent in its statements if you read it carefully. I get the feeling that the brochure is the result of TNNA members’ feelings, rather than that of law, but I haven’t done enough research to really know the difference.

    I’m afraid that your column, while very interesting and useful, raises some interesting questions. I did look at the patent and while I didn’t find it laughable, I am concerned as to how this could possibly be enforced. What is to prevent someone from taking this design, tweaking it a bit, then selling it as a piece of a pattern in an embroidery kit? Probably nothing, but how is the patent owner going to enforce her patent? I’m sure that will take much more energy than it is worth, which was the whole point of your comments about patents.

    I really don’t think that much of patents anyway (even though my engineer brother holds a few). I think it’s much better to safeguard ideas through secrecy (Coca-Cola formula), but it’s hard to do this with an embroidery technique.

    Anyway, thanks for the thought provoking article! It’s always worth thinking about.

    11
    1. It is my understanding that published patterns meant for personal use are meant to be used for self, family and gifts to be shared from the purchaser,or donated as charitable contibutions but these items are not to be made for sale for profit which would include craft shows where people often stitch the same design over and over without paying for a new pattern each time. Selling a stitched item at a garage sale or as a fund raiser for an NPO is not a sale for profit.

      What is allowable is for someone to buy the design or pattern and pay you for your service of stitching it on their behalf. That is how seamstresses make their money, but legally they should have a new pattern every time they start a garment or project for a new customer or the customer should furnish their pattern and not use the previously used patterns that the seamstress has left over unless the seamstress uses his/her own designs. When someone stitches the design repeatedly and does not have the permission of the designer to use this design for sale or profit, they deny the designer the sale of the pattern and the royalties, if any, for the use of the design. That is why each student in a sewing class or stitching class is required to buy their own pattern.

      Permission to sell the stitched work for profit needs to come from the designer to the stitcher and may come with a negotiated price for each sale. Designers make a living from their royalites, on direct pattern sales. Once permission is obtained, then the stitcher can decide at what price people pay for the stitching which is a separate transaction from what is paid to the designer, publisher, composer for the use of their composition. Music composers go broke because people download their music and don’t pay for it. Engineers get rich because they don’t share anything without being paid for it. Stitchery artists seem to just share and are grateful to see their work get stitched, although professional designer do need to feed their families and pay their rent too. Even if we do share well, the ethics of using someone’s designs are truly another whole issue.

  8. Oh, this is such a complicated subject… Being a freebie hunter for cross stitch patterns, I notice so many controversies… Many simple charts, samplers, for example, that include simple alphabets are offered for free, but you can find something very similar (if not the same) that is sold for ridiculous amount of money! OR, a designer offers you her design as a freebie, but after some time it becomes a pattern for sale… Hardly seems fair.

    I know that with internet, with so many existing designs (simple common things with flowers, birds, sheep, bees…) and so many creative people all over the world (some of them very generous and unselfish, others just pretentious “frauds” (some for example, make patterns using citations from books of classic authors, just plain letters! and they sell them for considerable sums of money to people with no imagination!!), with so many bloggers who teach and share, it’s very hard to keep something exclusive, it’s very hard to say who followed who or if anyone actually “stole” something or not… The flower that you drew may be exactly like the one a person on the other end of the globe drew some weeks ago… it’s just a flower after all. Of course it’s easier to tell with the large and complicated designs… But the line can be very unclear very often.

    All I know is if somebody doesn’t want others to use her supposedly unique method/idea, then they shouldn’t upload photos of it online for everyone to see! If a person is nice she just shares, if not, well, she is just vain and looks for applause… I’ve had lots of experience, and I can tell when it’s the 1st case or the 2nd. And I learn from that generous 1st type that is truly talented and kind.

    Once a creative beginner has mastered the technique, she has a right to make things her way… Imagine teachers running after their pupils all their life angrily reminding them :”It’s *I* who taught you to read!” So what, now I can’t read without her approval?? Nobody owes anything to the teachers but a ‘thank you’. Once you learn something you have a right to create your own things… not copying, of course, but looking at other people’s works you can’t help being inspired. This is how art works!! You don’t have to keep buying kits made by others all your life, when you are perfectly capable of creating your own.

    The problem is a lot of people imagine themselves great Artists! But art isn’t about money and ripping off others… It’s a self-expression. Forms of art have existed for centuries and it is silly indeed to claim you have invented this or that… Again, it’s just vanity. I think embroidery became so mercenary only at our time… Copyright should exist, but designers shouldn’t abuse laws either… they can’t expect so much from law… Because from the questions that you have answered, Mary… to me it sounds like some people just want to cash in on those who are less creative…

    Sorry for such long post.

    13
  9. Hello!

    Thank you for a useful article. I clicked on the link to U.S. Copyright Office and I’m wondering if you can help me understand that part with work created before and after 1978. Is it so that if a pattern is created before 1978 it is not protected by copyright law?

    Hope you can answer ๐Ÿ™‚

    Best regards,
    Ellisiv

    14
    1. Normally, you can’t sell derivative works. Most designers make it clear that their work is not for commercial use, and copyright protects them from people making and selling derivative works. If you used the same chart or the same kit instructions to make the same item multiple times to sell, that would certainly be a violation, because you’d be commercially exploiting the designer’s work for your own gain.

  10. Is it ok to use a purchased cross stitch kit, make it up and sell it at a craft fair (small kits, not large fancy ones)?

    Thank you, just had someone ask me a question about this and wasn’t sure.

    Thank you so much,
    Kathy Fisher

    16
  11. Hi Mary;
    I love this site!! Thank you for bringing us such great information and lovely needlework ideas.

    I have an extended question about copyright on needlework. Let’s say that I buy a kit, create the work, and then incorporate that finished piece into my own (otherwise) original design to turn it into another product, For example, if I buy a kit or pattern, create it, then work it into a quilt I designed, is that still a copyright violation?

    Thanks for any help you can offer!

    Racine Love

    17
    1. Hi, Racine – no, that’s not a copyright violation. You’re just incorporating your kit into another way of finishing, and it’s for your own personal use. If you were take your finished quilt and design a whole kit around it, and in that kit, use the design and everything from your embroidery kit that you purchased, and then sell your quilt kit, that WOULD be a copyright violation. But deciding on the finish of a piece – whether it’s a kit or anything else – for you own personal use is never a violation of copyright. Copyright doesn’t dictate how you can use the work in a finished project for your own personal use.

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