A copyright and intellectual property thought problem--strictly rhetorical
 

Consider this as a strictly academic, philosophical discussion, as I have no intentions of taking any action to reproduce my own or others' creative images. Don't bother to read if you get extremely emotionally invested in rhetorical questions and debate. I'm mom to a couple of future lawyers, and this post will prove it :) This is how we talk at the dinner table. We can disagree and do it civilly -- I'm sure that can happen here too.

The scenario: I've posted photographs of several quilts and pieced/appliqued projects I've made over the years on more than one photo sharing site online. Recently, I received an email from a company that makes and markets screen printed items (tshirts, totes, wallhangings, etc) saying that they love my art pieces and would like to enter into an arrangement whereby they use my designs for their products. I would receive somewhere between 5-10% of sales after an initial ceiling was met, blah blah blah. (I have no interest in doing this, so ignored the small print terms. Personally I see these ventures as the new spin on vanity presses of yesteryear).

Now here is the germ of my question for your mulling pleasure. Let's focus on one of my images for clarity. The design involved an applique of a squirrel silhouette on a randomly pieced background. While the idea and the construction of the piece were entirely out of my own random brain, the squirrel silhouette was based very closely on a card sold by Ikea a few years ago. I had enlarged it and simplified it, but in terms of proportions and actual shape, it was definitely cribbed from that source. Furthermore, many of the fabrics in my design were recognizably by well known fabric designers/manufacturers. At a quick glance, you could see some cotton & steel, some Lizzy House pearl necklace, some Tula Pink fabrics, and some Kate Spain. Looking more closely, you'd see Kaffe Fasset prints and random prints from Moda's mixed up line, and batiks.

Now -- what if I went forward with this business venture? Would the mass-produced items be guilty of copyright infringement? If so, who would be liable-- me, as the creator of the design, or the company that printed and sold them? Or both?

If you don't think it's copyright infringement, do you think it's still improper use of intellectual property? What if the company just used my images without my permission(which I assume they could do-- though the image quality is probably not up to snuff given that I took most of the photographs with my phone)? Would I still have any culpability if you answered yes? If you answer no, what makes it ok to mass produce? -- does the mixture of elements creating something new (even though source fabrics and squirrel shape are clearly recognizable from other sources), the percentage of the pattern being reproduced (say you only have half a repeat of a very distinctive Tula Pink print), the clearly different medium of the reproduction (canvas or garment)?

Is the answer different when talking about a very recognizable and distinctive print vs. a random, more generic print or batik? Does fabric designed by a person with a recognizable name (Tula Pink's Birds and Bees line) have different rules than a fabric line marketed by Moda, but without a big name designer, like Mixed up? What about a fabric that is definitely associated with a specific designer or manufacturer, but which is essentially a blender-- pearl necklace?

What if I or the company used a bunch of filters on the image so that the source materials were less recognizable-- would it then be ok?

What if the company approached each of the fabric designers and asked for permission? Would it then be ok? Ethically speaking, do the fabric designers have rights to some of the profits, or have they made their money in the sale of that fabric to me? If you were a fabric designer and saw a mass-produced tote where some of your design was recognizable in the art work, would you be flattered? Angry at the infringement? Does the answer depend on various factors, and if so, what would those factors be? What if you were the un-named Ikea card artist -- would you recognize your work, and want credit?

I have opinions on many of the questions posed above, but my position could be swayed. And to be honest, sometimes I think that legal and ethical are not exactly the same, so I'm interested in both your read on legalities (not only in the US) but also the ethics of decent treatment of creative people, be they the fabric designers or the quilting hobbiest who posts pics online.

You raise some very interesting questions, and I think there will be as many opinions as there are fabrics in the average quilt!.

I am probably odd man odd out here. If I understand correctly, you have culled a design of your own from various sources. Presuming that is correct, the following are my thoughts. A) sooner or later you will run out of the fabrics you are currently specifying and therefore, your 'design' will change predicated on those specific fabrics. B ) you have already stated that your design is, for lack of a better term, 'loosely' based on another. I don't think the original creator could 'come after you' since there is (apparently) 'little' resembselance (sp) to the original creator; C) I don't know that you could continue your 'original' design simply based on the fabrics.

Again, I am probably odd man out in the belief that once you purchase something (design; pattern; etc) it is yours to do with as you please. Certainly to the letter of the law, you may be prevented from 'sharing' a pattern or design, my belief is that once you purchase it is yours to do whatever. Not unlike persons who have purchased various books and donated them to a local library. Once that transaction has taken place, those books (regardless of subject matter) are now in 'the public domain' and can be copied/used to the renter's discretion.

I am sure others with more detailed knowledge of the subject matter will weigh in as well. Good luck.

Some fabrics specifically say, "for personal use only, not for resale". For those, the issue is clear. If I donate a book to the library, it clearly does not void the rights of publisher or author, only of that specific hard copy. For fabrics, I suspect the issue is cloudier. Obviously, they were printed to be used. The reason we are asked to state where the pattern and fabrics come from is to give credit where it is due. Some of us design our own or simply don't know where it came from, as the stash and pattern collection were a long time building. Secondary use of the quilt image can be, I suspect, a very murky area, legally. It is one I would rather not get involved in.

So NJ Quilter, one thing that you missed is that this manufacturer proposes to use an image of my original work and will screen print it onto tshirts and canvases. So I purchased a finite number of fat quarters which were used in my design, but the potential replications of the original are infinite.

In my opinion, since the component pieces of my crazy quilted squirrels are all very small (2.5 inches or less) and the image being acquired by the manufacturer is only of value to them as a complete entity -- squirrel mosaic on busy background-- not large chunks of brand name fabric being reprinted without permission -- in this case, I think I have legal and ethical rights to use my creation in whatever format I choose. However, I think it would be unethical to choose say 4 fat quarter I liked and stitch them together and then treat it in the same way. And I admit that there is a lot of gray area between the two extremes of the examples I've given.

Since I have no intention of going into business in any format, it's simply musing on my part. But I do think it's interesting in this age of so much pervasive sharing of images freely online. If you actually read the small print of those long site permissions when you join a site, such as this one, you essentially give up rights to the photos you post on that site. Granted, most of the time, the images will not be put to any further uses.

my question is this... If you don't accept their offer , does that then mean they can use your squirrel image freely?

As far as fabric reproduction, it seems to me I've seen recognizable fabric prints copied and then used for purses, totes, etc... look a likes so to speak. ??

it is not your original work.
it is your personal conglomeration of bits and pieces of others' work.
i'm not a lawyer but i am fairly certain using the results for personal gain - including the scenario sale to the printing company would violate several copyrights.
if not illegal, it would certainly be unethical.

since the scenario presented was hypothetical, the firestorm of arguments that will surely follow, would be pointless.
so i am locking this thread.