7/18/12

Proprietary Polka Dots

Yesterday I took the Daisies & Dots quilt to my long-armer to be quilted. This is the Daisies & Dots quilt:


The quilt back is made from this fabric. Nothing special, right? A pretty simple design. Regularly spaced small red polka dots on a white background. 


So imagine my astonishment when my quilter pointed out these words printed on the fabric's selvage:


Really? Quilting Treasures is actually claiming the right to license polka dots? Un-fricking-believable.

Last night and this morning I've been doing some research on certain things. I'm not a lawyer, but I have worked for lawyers. I know that legal terminology can be tricky and that definitions must be precise to have meaning under the law. Here are some things I've been wondering about.

**Doesn't a design have to be original to be copyrightable? According to the FAQ I found on the website Chilling Effects, yes.

**Just how long have polka dots been around? According to Wikipedia, polka dots first came into common usage in the late 19th Century in the United Kingdom.

**Can a manufacturer actually make the claim that a "license is required" for me to use fabric I purchased at retail? Here's where I get confused about terminology. But this is what I found about licensed fabrics in an excellent discussion on Tabbers Temptations:
A copyright statement as defined in the US Copyright Act is using the symbol © along with the word "copyright" (or abbreviated "Copr."), the first year of publication of the work, and the name of the copyright owner. Nothing else. Any other statement by the copyright owner is irrelevant, extraneous, unenforceable and improper. Many attorneys and company representative (sic) will attempt to "claim" that "licensed fabric" is sold for "personal use only" or that the fabric is for "non-commercial home use only". In some cases they will point to similar wording on the selvage of the fabric. There is absolutely NOTHING in state or federal law that gives a manufacturer, distributor or licensee the authority to impose such restrictions upon their product without the prior written consent of the purchaser. Any lawyer or company representative who tells you otherwise is either lying or badly informed, . . . 

Furthermore:

Licensed fabric means the fabric is licensed by the rights owner to be manufactured and sold. It does not mean the fabric is licensed at the time it is sold. A license on the use of the fabric requires the person buying it to agree, usually in writing, to conditions on the use of the fabric before paying for the fabric. If you do not agree to the "license" before purchasing, they will sell the fabric to you anyway. In fact, no one even asks you if you agree to the license. They just sell you the fabric. Any fabric sold without a signed mutual agreement prior to the sale is not licensed and there are no provisions in the law that allow for otherwise. Any one who tells you otherwise is lying. And, under the definition of a "license", they would record your name and address, require periodic payments, and demand the fabric be returned to them when you are done with it. That just does not happen.
In my particular case, I purchased the fabric online. I had no opportunity to see the selvage before purchasing it, nor did anyone tell me it would require a license if I were to use it for anything other than "personal consumption".

I'm still investigating. I have written an email to the authors of Tabbers Temptations to ask for clarification in this specific case regarding the proprietary privilege to polka dots in particular. (Always acknowledge amazing alliteration. That's my creed.)

Also, I've written an email to Quilting Treasurers that basically said: "Polka dots?  Really?  You're actually claiming the right to copyright polka dots? And, excuse my impertinence, but basically, WTF?"  

I will, of course, let you know what response I receive in both cases.  (I'm especially curious to know how they will respond to my "WTF" question.)

An even more important question I have is this:  Where would quilting be (as a craft), and more specifically, where would we be (as quilters and crafters) if our grandmothers, great grandmothers and great, great grandmothers had been so stingy with their fabrics and quilt designs? Isn't quilting, by its very nature, about re-using and sharing? Leah Day wrote an excellent post about Copyright Terrorism several months back when the whole copyright issue reared its greedy head. I'm linking to it because she has stated exactly what concerns me about anyone attempting to copyright fabrics, quilt blocks, quilt designs, or anything else relating to such a time-worn craft.

While I have resisted jumping into the public fray on the issue of copyright, I was too incensed about the polka dot predicament not to say something. I'm curious what you think.

Edited to say you can read the exciting conclusion to the Proprietary Polka Dot Caper right here.

31 comments from clever and witty friends:

The Slow Quilter said...

I am with you on this WTF!!! We just might have to go back to using our giveawy clothes to quilt, or it that designer blouse also copyright? Thank you for taken the time to check into this matter.

Vicki W said...

I think the whole thing has gotten waayyyy out of hand. I'm glad you are following up on this and I look forward to what you find out.

Barbara said...

Barbara here in response to The Slow Quilter: Interestingly, clothing specifically cannot be copyrighted. According to the 2nd Circuit Court of Appeals:

As " 'useful article[s]' ... having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information," 17 U.S.C. Sec. 101, clothes are not copyrightable.

I didn't know that until I started looking into this. I think quilting should be designated the same way. Are not quilts "useful articles" having an intrinsic "utilitarian function"? I think so.

Scooquilt said...

Thank you for looking into this. I had the same thoughts when I bought some STRIPES online, and they came with a similar lable. Turns out they were part of a Gone With the Wind collection (forget which manufacturer). I get that if I want to make quilts to sell with Clark Gable's face, then I probably owe fees to his estate, or MGM, or someone, but stripes? I ended up cutting it up for binding, which I felt made it untraceable, and so far I've been left alone by the authorities...

Celtic Thistle said...

I often see fabric cuts in the bins of my local fabric store with that message on the label and wondered what exactly they meant by it. Now I know! How ridiculous, I can't believe that the manufacturers can think that they have any control over what happens to fabric once it is sold! That is like saying you can't sell cakes made with branded chocolate without a licence from the chocolate manufacturer! Crazy.

Diane Wild said...

Actually, I've never even looked for this. And, you know what? If I did see it, I would ignore it. I have a hard time believing someone is going to come after me for not signing a license agreement for using fabric when drivers are ignoring stop signs and causing accidents.

Judy1522 said...

Oh My Gosh! I didn't know there was even a controversy about fabric copyright. What would be the point of even buying any at all if you couldn't use it for what you wanted. I kind of thought that was what fabric was for. I read the post on Leah Day's blog and watched most of the video. I agree with what she has to say on the whole issue. I don't even get Kate Spain's issue with the photograph on the bag. It was a photograph of a quilt made by someone else. So what if it used her fabric if people wanted to know the fabric line they would have asked.

Marjorie's Busy Corner said...

It is just crazy....love your fabrics though

Dana Gaffney said...

Wouldn't you think a fabric manufacturer would say "use it for whatever, the more you use, the more we sell". I agree WTF.

sew.darn.quilt said...

The polka dots, the daisies, the orange, the design....magnifique.
As for the licensing "BS", really who do they think they are? Maybe those fabrics that carry such a label would like a boycott? Wonder what they'd have to say then?

LynCC said...

Oh, I ****Love**** this quilt! Yeah - POLKA DOTS? Be interesting to see what they answer you with.

On the side - I just noticed the super cool kitty silhouette that shows up on the tab up top for your page. Very cool :)

Linda said...

Your quilt it great...I agree..this is strange.. Thank you for all your time and effort you are putting in to finding the solution!! I agree--fabric cannot be "consumed." It is used to create something.

Astrid said...

This is interesting! I don't have any choice when it comes to buying fabric online, because good quality quilting fabrics are not sold here. Recently I bought some some fabrics where it is printed on the selvage 'this pattern is for individual use only'. I'm confused, because I'm not sure they mean the pattern only or the fabric too?! When I have purchased fabrics, I consider is as mine and that I'm allowed to do whatever I want with it! If fabric is for personal use only, at least (online) shops should inform buyers so that we can choose! I think it is rather ridicilous! Btw, love your quilt!

Angie said...

I've checked into all of this "lingo" also. I'm not a lawyer but the way it was explained to me is that you can't reproduce the pattern on the fabric but you have the right to sell whatever you make from the fabric.

Angie said...

I just love this quilt and can't wait to see it all quilted.

kc said...

You summed it up nicely in 3 little words...WTF! Really, polka dots?

I understand that maybe Walt Disney (RIP, gentle soul) wouldn't have wanted images of Tinkerbelle used for toilet paper or something, so I can see why some companies reserve the right to use their designs. Like, if I was a really bad stitcher and I embroidered a really poor image of Mickey on a sweatshirt, I could see how that might be considered representative of Disney, and it would be below their standards.

And I wouldn't want something I'd written to be edited poorly, maybe even the meaning changed somewhat, then credited back to me as something I said, but, really? Polka dots? Umm....excuse me, but imho, we'd have to go back a looooong way to find the originator of polka dots.

Don't know how "they" think "they" can control usage of fabric after it leaves the retailer.

Kate said...

I'm curious to see what you hear back from the fabric company.

After reading Leah Day's post a few months ago, I started being a lot more careful to label any of my posted WIPs and finished quilts on my blog with the pattern name, the designer and the book or web site where I got the pattern. I look at that as referencing my source, just as I would if I was writing a research paper, where did I get the information to make the design because the design is copyrighted (as is most information in any publication). But I would consider fabric as the "artist pencils" of making a quilt. I can't reproduce the design of the fabric as that is copyrighted (just as the formulation of the ink in the pens is probably patented), but once I've purchased either, I can create my own "art" and that copyright becomes mine. I tried to find a definition for "individual consumption" and didn't find much.

Snoodles said...

Love your quilt....I'm in agreement with many here: I can't say that I've seen it before, but I think I might ignore it. That being said, I'm glad that you are pursuing it and hope to see what happens. If you write the post from jail, I'll know I should NOT ignore it! LOL

greelyrita said...

I designed a stained glass pattern in honour of breast cancer. I offer it free to any who ask for it, and more than 500 have. Some people are so nervous, they have felt they needed to ask if they can change the glass I showed used in the example. People have been whipped into a frenzy about using other peoples' anything. When asked, I tell people that you can do whatever you want with the pattern. It's a starting point. I would not want to nor could I dream of trying to control whether people make money selling articles made with this pattern. The only thing that makes me boil, and this has been done, is when people claim to have designed the pattern. I'm not a lawyer either, but where has all the common sense gone? Do we really need lawyers to dictate common sense??

Rhonda said...

Fabric is getting so expensive I feel like I'm already paying Trademark and patent fees!

simplesew said...

I cant wait to hear their response, when they sold it to you, they gave you the right. But what I would question is who is the idiot that put for except for consumption ??? this has to be a printing problem..heehhee

simplesew said...

Do they really have FBI fabric agents????

karen608 said...

I assume these words are on every pattern of cloth this company sells, dots or otherwise. I'm sure some lawyer advised them to protect their designs, and no one ever thought about polka dot fabric at all. If you use it and cut the selvage off, just how would they know it was their dot fabric in a project anyway?

Judith said...

How sad it has come to this--thank you for including Leah Day's blogspot on this topic. One comment left to her mentioned Mennonite and Amish women's ghosts chasing us around due to our using their designs. I had a fun time imagining this! But really, all of us have brains (given by our Creator)to think up wonderfully, creative designs. Let's give Him the credit--even the design Nazis.

Mrs.Pickles said...

love the new look!!

As for the polka dots...that is strange I better be careful next time i put a bunch of dots on paper...LOL

mahoo said...

Glad you jumped into this Barb. There are lines of fabric I won't buy anymore because of this issue.(I buy 99% of my fabric online.) It's foolishness IMHO to try to license polka dots, stripes or whatever. (If anyone is really interested, you can find plenty of links on the C&T Publishing/Kate Spain/Emily Cier fiasco at http://carolinapatchworks.com/blog/2012/03/22/more-sides-to-the-story/
)

Kate said...

I agree WTF!! I also ask WTF when I see books publised with the same patterns , using different fabrics and saying it is copywright. Not to mention some of the patterns are ones I have in books that are 20 -30 years old and they say copywright on them too!

quiltzyx said...

I had to laugh when I saw the selvedge! Yesterday I was helping to sort fabric that had been donated to my guild by the estate of one of our members. I came across a piece of SOLID WHITE fabric that had pretty much the same verbiage on it!!!

Anonymous said...

As far as Im concerned, the same thing goes for a lot of blogers who say the same thing I Log cabin quilt is a Log Cabin quilt, and Im going to us it sell it or anything else I want to do with it. I have seen soooooooooo many Blogers who make a quilt or block out of a design that has been around forever and then tell us that we can't copy it, sell it or anything else without their permossion. Well Big thum off the nose to all of them. Im not a bloger, so I don't get all my fabric given to me frome the online fabeic places. I go 40 miles to BUY it, and if I see a quilt on line that I want to make then Im going to make it, make a copy for my daughter and probbly sell it at the fairs I go to so I can go and buy more fabric. Im sorry if Im being sassy or anything but you yourself have sad it all. Thank You for letting me get this off my chest. Gerry guyie@midmaine.com

Zuzan said...

Australia's indigenous people who have lived here for 50,000 years plus paint with dots/spots/? to create their story. Their beliefs and pictures are still painted on rocks, some bark and now canvas for worldwide appreciation.
So this dotty selvedge has spots on it then...it belongs to the world.

Auntiepatch said...

I think that you "buy the rights" to the fabric when YOU BUY THE FABRIC. What's next? Will they be telling us what we can and can't make with fabric now? Yeah, right.