Trying to Figure Out One of Those Niggling Problems: Copyright

Okay. On Ravelry forums, I constantly see conversations batting about the same questions that apply to me (and I'm specifically discussing US copyright law):

1. Does it violate copyright to sell a doll that I've created based on an existing intellectual property? The prime example I've got of that is the Alot, though it also applies to a current project.

2. Does it violate the copyright to sell the pattern that I've created that would enable someone else to make this same doll?

I hear a lot of guesses and a lot of contradiction, but no one seems to really know. One thing I do know, is that - copyright-wise - a crafter is perfectly within their rights to sell a finished object created from a pattern, with or without the designer's permission. So that's a non-issue.

However, these other two apply to me. I don't want to violate the law if I can help it, so I decided that the time has come to really figure this out. First, I read through a lot of threads in the Copyright Matters group on Ravelry, and found it mostly unhelpful. It did reveal a second layer of this problem to me: there's copyright, and then there is trademark, and both are relevant to this discussion.

Anyway, now I'm at www.copyright.gov, and I'm reading through the copyright law, and if I don't take notes, I'll forget things, and I thought this might be helpful to others, so hi! Welcome to my post on notes about this issue, as taken from the US Copyright Office "Copyright Law of the United States of America and Related Laws Contained in Title 18 of the US Code, Circular 92". (and I'll note - this post is pretty long, but if you skip to close to the bottom, I do find a probable answer, and you can skip all the in between :) )

Definitions: the circular starts with definitions. A few of them are definitely applicable to what I'm dealing with:
"A work is 'created' when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work."

"A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a 'derivative work'."

I think this one is particularly important, because a crochet pattern to create a doll that is inspired by another source is clearly a derivative work.

"To 'display' a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially."

My guess is that this previous applies more to, for example, showing a movie in a public space (which is contrary to those FBI warnings at the beginning of films) - or to whole-sale using images from other people's works as an icon, webpage image, etc. Which everyone does all the time, but is technically not allowed except when it can pass as fair use (if I'm understanding stuff right).

"The term 'financial gain' includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works."

Financial gain, aka, the actual goal of all this.

"'Pictorial, graphic, and sculptural works' include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."

Hehe, I'm a sculptor...

"'Publication' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication."

They also define work for hire, but I'm going to dodge that bullet entirely - though I think that in the future I should make it clear to folks who commission patterns from me that I do NOT consider them to be works for hire - that I'm selling them one copy of a pattern that I've written (on their behalf) but retain my rights to sell it to other folks. (I know a little about work for hire because most of the work I do as part of my day job qualifies as this).

Okay! So those are the definitions I think are most relevant to what I'm doing. Here goes...

"Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: ...(5) pictorial, graphic and sculptural works"

So, first incredibly simple and non-contested answer: I own the copyright to my own patterns.

The follow up, and one that is VERY important to crafters, is the proof of what I said above (about finished objects):

"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 form in which it is described, explained, illustrated, or embodied in such work."

Can't get any more straight forward than that!

The next section moves on to compilations and derivative works.
1. "The subject matter of copyright as specified by [the stuff I just copied above] includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."

My Attempt at Translation: copyright extends to a derivative work, but if it uses actual preexisting material, that cannot be copyrighted by another user. For example, if I make a pattern in which I write 2/3 myself and then copy in a long bit of pattern that I found on the internet, my 2/3 is copyrighted to me but if I've gone beyond fair use with my copying of the rest, I have no copyright on it. Also, this means that I can't take a bunch of patterns copyrighted by others, toss them in to a compilation, and claim copyright on the non-original parts.

2. "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."

This would seem to suggest that a pattern that I created all of might not violate a pre-existing copyright UNLESS I were to, for example, include original photographs/drawings by the original artists, or directly copy some of their text as a description.

The next few sections aren't relevant, and then it goes on to discuss what the rights of a copyright holder are. To give a synopsis of how this applies in my own particular case, it's pretty simple: I own the copyright to a pattern I've written, I can reproduce it as I wish, I can develop derivatives of my own work, I can sell it, I can make it. I have the right to claim ownership, and (interestingly specified) I have the right to disclaim ownership of anything I didn't create, were it to be attributed to me. Hmm...there's some hints in this section that it might be kosher to make dolls of existing work and to sell the patterns, but it's not that clear.

Next there's a little section about fair use. It matches pretty closely what I learned in my MLS classes. But it doesn't really apply to what I'm doing, it really relates directly to reproducing existing copyrighted material.

The next few sections talk about limitations on exclusive rights. It's pretty thick, but in and among the exemptions, it's clear that many of these rules are intended to protect teachers, cable providers, those who bleep out curse words, non-profit uses, and other such things. So far none of it has been applicable.

Then there are a few sections that talk about what rights ARE exclusive. And a few other sections on specific types of stuff, none of which is terribly helpful. Hmm...

On to chapter 2! (but first, I'm taking a break. And eating some pie)

Not sure this is relevant: "Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object."

I think this would relate more to the finished object question (which is already settled) than to a derivative work.

Wow, not much to Chapter 2. Chapter 3! Chapter 3 is also fast - it's all about the duration of copyrights - interesting but not related to my current search. Chapter 4! Chapter 4 is all about giving notice of copyright. It suggests that if I keep doing this it would be worth registering my copyrights, but otherwise doesn't have much to contribute. Chapter 5 pertained to infringement, but it mostly gives blanket statements about what to do if the already delineated rights are violated - which didn't really answer my question. It also talks about the possible punishments. So I decided to pause and go back to the main page and see if I could find something more specific about derivative works...

...like this! Copyright Registration for Derivative Works (Circular 14). "Any work in which the editorial revisions, annotations, elaborations or other modifications represent, as a whole, an original work of authorship is a derivative work or a new version. A typical derivative work registered in the Copyright Office is a primarily new work but incorporates some previously published material. The previously published material makes the work a derivative work under copyright law. To be copyrightable, a derivative work must differ sufficiently from the original to be regarded as a new work or must contain a substantial amount of new material...the new material must be original and copyrightable in itself."

It then gives some examples that make things very, very clear. Here's the one that demonstrates that the dolls I'm trying to figure out about are, in fact, legally derivative works: example: "sculpture (based on a drawing); drawing (based on a photograph); motion picture (based on a play)." So this is an important first step: because my works are derivative works, I am the copyright holder - and this is allowed. "The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time." So if I make a completely original doll and pattern based on an existing copyrighted material, I'm in the clear. HOWEVER! It also reiterates what I found before: "in any case where a protected work is used unlawfully, that is, without the permission of the copyright owner, copyright will not be extended to the illegally used part." And here is the answer: "only the owner of a copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work."

Well then. That reads a whole lot like that. If I want to make a derivative work of any work that is not in the public domain, I would need the permission of the copyright holder. So, to make the alot or to sell a pattern of it, I would have to have the permission of the author of Hyperbole and a Half.

I think this is pretty conclusive - even without touching on the trademark part, which is - I'm sure - a whole other can of worms. (which I just read about here - and I found this useful site where you can search to see if something is trademarked in the US! Playing around with some terms from Harry Potter, it's pretty interesting...). However, I'm going to write to the Copyright Office and describe my situation, just to be sure.

So! I know that this is a long post, and a bit rambling, and that I could cut it down and just go right to the chase, but I don't know, I think sometimes it's useful to see the process that other people go through. Anyway, I'm off to write to the government, then I'm going to eat another piece of pie. And go to sleep. Cause I woke up at 4:45 this morning and have to wake up at 5:30 tomorrow and I'm just a bit loopy. :)

(and by the way, based on marker 105, I've violated no copyright by copying and pasting all this stuff in to my blog - works generated by the US Government aren't subject to copyright in the same way, which I already knew. ;) )