The natural world and depictions thereof

[MrsTwosheds]

Good evening everyone

I would be so grateful, please, for any guidance regarding artistic representations of the natural world, and the copyright laws regarding it.

I have for some months been considering making a few bits and pieces with 3D textile butterflies/moths attached. This would be, basically, a two-layer insect in a variety of plain-ish fabrics and colours (so an underwing, an overwing and a little stick textile body, perhaps with a few random veins and a wee bit of moth-like marking). Apart from its shape, it wouldn’t be an accurate representation of a real moth in either colour or texture but would be what I assume would now be loosely termed ‘folk’ art, made from random textiles.

I located, enlarged and printed out some good representations of actual underwing moths using a variety of old books, clip art websites, etc, and cut round the shapes to use as patterns. Whilst Googling these sites, I noticed several Etsy pictures of items made in the exact way that I had intended to make mine. Closer investigation revealed that an artist was selling download patterns for an almost identical item, but was insistent that the patterns be used ‘for personal use only’ and items made from them were not to be offered for sale. Dammit.

Is it really possible to copyright a simple shape that consistently occurs in the natural world? The shapes that I have cut out are just large, real, bog-standard moths (cut twice, so that I have an upper and lower wing, as in nature), but are almost identical to the Etsy seller’s pattern. I have looked at scores of butterfly and moth illustrations and they largely seem to be variations on the same theme. She has made the moths in a variety of fabrics for illustration, but she’s actually selling a PDF pattern so I’m guessing that she could claim that anything of that particular shape made in any fabric could be a copyright breach? My plans have been severely crimped .

Any guidance would be gratefully received! Huge thanks in anticipation.

[AndyJ]

Hi Sally,

Good to hear that your creativity continues. The law says that ideas alone cannot be subject to copyright; only the specific way that the idea is expressed, provided that it itself was not copied from elsewhere, can attract copyight. In other words, if you were to follow the exact design that this other maker was selling, then that might amount to infringement of her copyright. Appliqué moths/butterflies have been around for years as a fashion detail, so arguably hers is not an original idea anyway. But from the way you explained the situation, it sounds as if you came up with your own concept/design before you looked at the Etsy pictures/patterns. That would make this is a case of independent creation, which means that there wouldn't be any infringement. The difficulty here is the fact that you acknowledge that you have seen her design and so it would be harder to argue that there wasn't some, possibly unconscious, copying going on. I don't think there is any likelihood that you would be sued, however were that to happen, the court would expect you to show evidence that you came up with your design, fully formed, before seeing the other designer's - a very hard thing to do. A couple of examples here and here of how the courts tend to approach such cases.

So, given that the underlying idea is not protected, I would suggest you do as much as you can to ensure that the way you execute the making of your moths is as different from hers as it can be, within the overall constraint that you still want the finished article to look like a moth.

Perhaps a better starting point might be to get pictures of real moths and try to re-create their exact shape, colouring and patterning etc in fabric etc. Copying nature obviously does not involve anyone's copyright (copyright being an earthly construct, not a religious one!).

[MrsTwosheds]

Hi Andy

Huge thanks for your speedy and erudite response as always - I’m sure that your excellent advice has already saved me from an alternative career sewing mailbags!

Copyright issues remain a mystery to me. I may rethink my moth - my original template was cut from the outline of an actual moth, with veins copied from a late Victorian wing diagram (so far, so good - all copyright free!). I was hoping then to get away with the simplest and tiniest of tweaks in terms of decoration (a suggestion of a spot here or there), so a speedy ‘folk art’ moth rather than a realistic masterpiece. Alas, it would seem that I am too late with this, and that my intended tweak is already someone’s copyrighted design. I am mildly surprised that such a tiny and natural progression from the basic design of the gods is copyrightable. Botheration that I didn’t think of it first, that’s all!

Back to the drawing board. I may give it all up and grow petunias (I jest - the petunias would hate that). Thank you so much again - you really are a font of knowledge and I love that you guys are there for us.