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Copyright 2002-2006, Quilter's Muse Publications.  All rights reserved. 
                                 Patricia and James Cummings,  Concord, NH
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Copyright and Quilts
Trying to Get the Big Picture

by Patricia Cummings
 

This article, in its entirety, may be printed and shared with whomever you think might be interested. Of course, I would appreciate a hard copy of this article, as printed, in a published magazine or newspaper or guild newsletter. Thanks.
e-mail: pat@quiltersmuse.com

Source of Dispute

On the weekend of August 8, 2004, I first became aware of a controversy that has unleashed a plethora of posts on various discussion lists for quilters on the Internet. The eBay auction #8121416446 involves a dispute between a quilter, Sandra Jones, and a quilt professional, Brenda Manges Papadakis. The personal correspondence between these two individuals was posted by the seller for all who visited the auction to see. By August 10, almost 7,500 people had visited the listing. The issue concerned the right of a quilter to sell a quilt that has been created on the basis of someone else’s book, versus the right of the seller of that book to claim a royalty or to scream copyright infringement. This has many quilters re-thinking the purchase of commercial patterns and books, a major source of income for the whole booming quilt industry.

Picture the quilter’s viewpoint. Sandra Jones, inspired by seeing photos at http://www.dearjane.com, purchased the book Dear Jane: The Two Hundred Twenty-Five Patterns from the 1863 Jane A. Stickle Quilt by Brenda Manges Papadakis (Quilt House Publishing, 1996). After deciding that she would like to make a quilt that was very similar to the one in the book, but with larger blocks, Jones also sent for the CD-ROM of these designs. The changes made by Jones amounted to a 25% modification, according to what she wrote on eBay. The Jane A. Stickle patterns are based on a Civil War era quilt that is in the collection of the Bennington Museum in Bennington, Vermont, to which Papadakis was allowed access to prepare her book.

Name of eBay Auction Involves Trademarked Name

When Jones finished piecing the 225 little blocks that comprise the quilt top, she decided that her hand quilting skills left far too much to be desired to do justice to the top and she decided to offer this bed size quilt top for sale on eBay at $1,200. The title of the auction placed on eBay was "Civil War Replica Dear Jane Quilt Top 99.5" Square."

 

Royalty Fee Set by Designer

Before long, Jones and Papadakis were sending e-mails to each other. After telling Jones that her quilt top is “lovely,” subsequent e-mails from the book’s author mention that Jones is in violation of the copyright law in offering this auction. In addition, the words “Dear Jane” that appear in the title of the auction are protected under Trademark, she stated. A 12% royalty fee was demanded, if the quilt top was sold.

 

The Reaction of Quilters

In hearing about this situation, many quilters on every quilt-related list to which I subscribe have been outraged and angered, and are feeling betrayed. Some have concluded that the treatment dished out by the designer is a breach of their rights as consumers. Read on.

Consumers Unaware

Most people, including quilters, do not think about copyright law and all of its ramifications. The law exists to protect writers, designers, artists, musicians, photographers, and others who would engage in a creative process, producing tangible material objects that are unique to them. In other words, if you have an idea and then tell someone else, and then that other person acts on your idea before you have a chance to do so yourself, you are not protected under law. While still in your head, an idea is not copyrightable.

 

Those quilters who buy a quilt pattern or book to use as a guide in making a quilt do not stop to think that it may be NOT okay to sell the finished quilt. So, this latest dispute comes as news to them. In finding out that, although not often outwardly stated in commercial patterns, it is understood that any copyright-protected item of that kind is intended for personal use and use within reason. The mass production of a quilt (which was not the instance in the Jones situation), based on the purchase of one book or pattern, is not allowed.

Enforcement Difficult

Of course, there really is no unit known as the “Quilt Police.” Even if there were, there would not be enough members to enforce the copyright laws worldwide. Nor would most owners of a copyright even want to try to stop individuals who are making items to sell at church fairs or to raise money for charity. Hiring an attorney to try to prevent every possible infraction of copyright law would be prohibitively expensive.

 

Impact on Quilt Industry

The backlash of the auction in question is the decision among some quilters to boycott the purchase of quilt books, not only written by this individual author, but also the books and patterns of other hard-working designers in the industry. They are saying, “If I can’t do what I want with a quilt I make from so and so’s book, then I will stop buying all books and patterns and make my own designs." While this is not a bad idea in terms of engendering more creativity, this kind of thinking could have a major impact on the quilt industry that relies so heavily on book and pattern buyers.

 

Better Labeling Needed

The problem of confusion over the whole issue will not be cleared up until there is more uniformity on the outside packaging of quilt products. This idea would extend beyond just printed patterns. Consumers should know, at the point of sale, how many items they can make from the pattern, and whether or not they will be allowed to sell the finished product made from the design they are purchasing. That could clear up much of the mystery about a designer's expectations.

As one quilt show judge has pointed out, even designers of plastic stencils which quilters use for marking designs on wholecloth quilts, should be acknowledged on any provenance label on the back of a finished quilt. Labels should contain complete provenance information, including the name of the person who quilted the quil, by hand or machine, if that person is different from the quilt top maker. In addition, it should be noted as to whether or not the quilt is original, from a kit, or inspired by some other source.

Who Owns Antique Designs?

 

Quilters are asking another burning question:  How can someone claim copyright to designs that were in common use in the mid-nineteenth century? That seems to be a reasonable question, but the answers are complex and multi-layered. This is why we have lawyers who make a career of studying and administering copyright law, and judges who make decisions, on a case by case basis.

The "Met" Quilt

 

Recently, there have been other Internet posts regarding copyright issues. In one instance, a member of a list was in possession of a photo of a nineteenth century Baltimore Album Quilt. A pattern for it that had been offered in Woman’s Day magazine, October 1965. The article entitled "Baltimore Friendship Quilt" was written by Roxa Wright (p. 52, 53, and another (unknown) page number).

When asked by others on the quilt list to provide them copies of her magazine article, the woman declined, stating that she did not know if that action would violate copyright law. Woman's Day magazine was called and the individual who was inquiring was told of the stipulations the magazine would place on the use of the design.

The magazine editor stated that they have copyright jurisdiction over the print material associated with the quilt. The use of the pattern, for personal use only, was assessed a value of $100., and its use would be limited to one year's time (a general statement that I do not quite understand, if the quilter is already in possession of the pattern).

 

In the meantime, the Folsom Quilt Guild http://www.folsomquilt.org/ has constructed an opportunity quilt based on the same Baltimore quilt, with slightly modified designs. Besides selling opportunity quilt tickets, patterns for the quilt are being offered at $50.00 per set. The patterns are in the full size needed to work with them.

Reportedly, the Folsom Quilt Guild's pattern for the historic nineteenth century quilt was drafted (with modifications) by a group member, Adele Ingraham. In drafting the designs, she utilized a 1980s poster issued by the Metropolitan Museum of Art.

Adele's quilt, "Baltimore Album Redone" is featured in the Color Section (Quilt #14) of Baltimore Beauties and Beyond: Studies in Classic Album Quilt Appliqué, Volume Two by Elly Sienkiewicz (California: C&T Publishing, 1991).

The quilt on the Met poster is thought to have been made by Elizabeth Sliver, 1849. The original quilt is, indeed, now owned by the Metropolitan Museum of Art and can be seen on page 215 of a book entitled, American Quilts and Coverlets by Amelia Peck (New York: Metropolitan Museum of Art, 1990).

Could the museum who owns the quilt claim any money from the proceeds of the ticket sales? Of course, the photographer who took the photo for the museum poster could potentially claim all rights to the use of his photo image!

Complexity of Copyright Ownership

In summary, the original masterpiece "Folsom" quilt was created in the nineteenth century. Photos of the quilt and an article about it appeared in Woman’s Day. The magazine claims copyright ownership for their print information, and are levying a charge for the use of it. The Metropolitan Museum of Art which owns the quilt issued a large color poster which features it. A quilt guild member copied and modified patterns from the poster, and now her guild has not only reproduced the quilt as an "opportunity quilt" to benefit guild activities, but they are also selling the member's patterns at $50. per set. The person who had first sold patterns in 1965 through Woman's Day magazine, had no doubt also reaped some income from that article.

Who truly "owns" these patterns and has the right to distribute them? All of the above individuals?

Can you see how truly complex the issue of copyright can become, very quickly, with everyone, other than the original maker of the quilt, claiming ownership to its designs?

(8/20/04 note:  Apparently, certain sellers think that if they do not divulge the source of the patterns they are marketing, then it makes what they are doing "ok," from a legal standpoint. Others feel that if they modify the size or design slightly, then any pattern, not originally designed by them, is "up for grabs," and that they can then claim exclusive rights to the graphic configurations).

Although this is not a point of law, common sense dictates that the bottom line should be that an individual cannot benefit financially from the work of another person without just compensation. In the case of nineteenth century textiles, the originator of the designs, is pushing up the daisies, and legal ownership of copyright is a moot point, unless a previously-owned copyright has been consistently renewed by interested parties.

When there are so many different “players” who think that potentially they could or should derive some income from the past work of others, a clear understanding of the situation is difficult. To those attorneys who study copyright law, the situation is probably a lot less gray than we imagine. However, it seems that even attorneys sometimes have a hard time hashing out all of the fine points involved.

Personal Commentary

When I wrote a book in 2002 that contains historic late nineteenth century  Redwork designs, I copyrighted it with the Library of Congress. This is how I worded a paragraph on the inside cover:


© Patricia Lynne Grace Cummings, Concord, NH 2002. All rights reserved.
"Please enjoy these designs for your own personal use. Do not duplicate patterns or written information from this book for resale or for distribution to any person, whether free of charge ,or for monetary consideration. Electronic sharing via electronic means on Internet files is also prohibited. To duplicate this book in any manner is a legal violation of copyright law which can result in litigation. In addition, all offenders shall be tarred and feathered," (said "tongue in cheek).

The book utilizes designs from a nineteenth century coverlet that
* I * own, as is the case for most of the textiles for which I have written instructions and prepared patterns. There is written text about the history of the technique, directions, diagrams that I personally drew, or that are in the public domain, original photography, footnotes and a resources list, as well as the designs from the coverlet, a photo of the coverlet, and a photo of a derivative work (on the front cover), all photos copyrighted to James Cummings.

We "own" our interpretations via drawn designs, and we "own" the original text, and we also "own" the photos.

In copyrighting the book, I was not laying claim to the antique designs themselves, nor inferring or stating that I originally made them. The copyright was/is in place to deter those who would think that it might be okay to photocopy pages from my book, or to reproduce the book in its entirety for commercial purposes. The right of distribution in any manner, lies with the creator of the material object, even if the secondary party would not profit from distribution (say, photographing pages out of a book, for friends).

The exception is the re-sale of an entire purchased book, which is obviously not included in the idea of copyright infringement.

For lack of a better term, the “end-user” of any product inherently has some limits placed on their consumer “rights.” In the case of quilt products, the law considers what is “fair use.” Some designers get more specific and state on their patterns that the design can be used for personal use only, or they specify that only a certain number of items can be made, or that none of those can be sold.

Respect Needed on All Fronts

We need to be respectful of the rights of professionals, as well as protective of our own rights as individuals. More than ever, in this computer-savvy age and with copy machines and scanners so readily available, we have more access to information and ways to share and to process it than ever before. They don’t call the Internet “the information highway,” without  a reason. Courtesy and common sense must prevail. Asking questions of the designer ahead of time can go a long way toward staying on the right side of the law, and in demonstrating a desire to avoid infringement on the rights of others.

The Jones/Papadakis situation might have become a test cast in a court of law. Not that quilters like litigation, but a judge’s ruling might help to clear the air and pave the way for greater understanding of the law as it applies to quilting. Most people are willing to be reasonable and to abide by the rules, when they know what the rules are. This whole issue is a contentious one and I sincerely hope that it can be resolved quickly.

8/20/04: The Jones/Papadakis situation seems to have been resolved between the two parties. Sandra Jones has listed her quilt top on eBay again under the heading of "Jane Stickle Civil War Replica Quilt Top 99.5" Square," auction 8124955417. There is no mention of the book or the designer, and bids quickly rose well beyond her initial asking price of $1,200.

By the way, in the first auction, Jones closed the auction. Even though you will see "0" bids, if you go to view that auction, if you click on the number 0 to see "bid history," you will see that there had been one bid.

While I am happy to receive reader mail, please do not ask for any legal advice. I am not qualified to address your questions. If you have a specific concern, be aware that there is a "Lawyers for the Arts" program. An online list of participating, volunteer attorneys across the nation is maintained by the National Endowment for the Arts.  One can make an appointment for a consultation at a reduced fee, for a one time visit. For information about your local area, you could also check your U.S. phone book's yellow pages.

Online Resources

http://www.copyright.gov/circs/circla.html  Government website that has tons of information about the copyright law. The first federal copyright law was passed in 1790.

http://www.quilttownusa.com/Town_Hall/cpexperts.htm

http://cyber.law.harvard.edu/property/library/moralprimer.html

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©Patricia Cummings, Concord, NH, August 10, 2004, Concord, New Hampshire, with updates on August 20, 2004