Credit and sales restrictions on sewing patterns

[MrsTwosheds]

Good evening all

I’ve been wondering about this for a while, and thought I’d leap in and get a view from you guys, please.

I’m a regular purchaser of assorted gubbins on Etsy. I generally tend to buy graphics for my own craft creations, but recently have strayed into the realm of arty soft toy patterns (mostly realistic-looking dogs/wildlife and such like), which require extensive sewing skills and laborious hand painting on my part to produce.

These patterns tend to be rather beautifully designed by artists proper, but their products (PDF downloads with paper pattern and tutorial instructions) seem to be heavily conditional in many cases. Some declare that the item can be made for personal use, but cannot be sold, others maintain that they may be sold in limited quantities but that the creator of the pattern must be credited in every case. There is no mention as to whether they might be given away without a credit to the artist, or whether dire consequences would follow.

Does the artist hold the copyright to the exact item that I’ve personally made, even though my input would have slightly skewed their original product (particularly if I have used, say, a colour palette which differs from the original), or to the pattern only? Must I attach a credit to the artist on the item (even if I’m giving it away or donating it to a charity?) - is that a legal requirement in the UK?

I need to say that I honestly have no intention of selling anything (there’s also a pretty good chance that the artist would be appalled by my efforts, and not wish to be associated with them anyway ). Also, I don’t mind crediting the artist at all, but am really curious about the whole thing.

I’ve found some of the above questions posed online in various places, but the answers appear to be variable (and largely US biased).

Any help very gratefully received as always, guys,

Thank you so much.

[AndyJ]

Hi Sally, good to hear from as ever.

It's difficult to be specific but I think it's likely that the artist will own the copyright in the designs and the sewing pattern in most cases. It then becomes a matter of how much of that original ends up in your version of the completed item. As a rule of thumb, if you have incorporated a substantial part of the original then, but for the licence, you might be liable for copyright infringement. In such circumstances the terms under which the pattern was sold become legitimate terms of the licence. But any failure on your part to abide by the licence terms then effectively becomes a breach of contract, rather than just copyright infringement. The specific right to a credit, if this has been stated, then comes under sections 77 - 79 of the Copyright Designs and Patents Act 1988. It doesn't really matter if you give away the item or sell it, liability would be the same. However if you are only talking about giving away a few items, it's hard to see how the artist would ever find out about it.

There is also the matter of something called design right, which is intended to more directly protect against the unauthorised production of items made to a particular design. Here the test is whether some informed person would gain the impression that your work had been made to the protected design. 'Informed person' here means someone familiar with the whole field of making animals out of fabric and who would therefore be familiar with all the many designs which were available. To meet the standard to be eligible for registration, the design of the item needs to be novel and have its own distinctive character that sets it apart from others. The protection in a registrered design only affects the appearance or contours of the item, and not its functionality. It's quite a complicated subject so unless you see the words 'Registered Design' and a registration mumber on the pattern, I think you can ignore this subject.

I hope this helps.

[MrsTwosheds]

Gosh, that is interesting (and the contract aspect was something I really didn’t anticipate - I shall tread warily around that)! I’m fairly sure that I’ve not encountered a registered design yet, but will keep an eye out for it.

Thanks, Andy, as always, for your excellent attention to detail and speedy response (I just knew that you would know the answer). That’s absolutely brilliant - thank you so much.

[AndyJ]

Sally, I didn't mention this in my earlier reply in order to keep it short and simple, but If one of the terms of the licence to use these patterns is not clear to you when you first buy it, and it is not one you might expect to exist in the circumstances, then you may also be protected by the Unfair Contract Terms Act 1977. This Act says that a term must be "a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made." (section 11) - the contract here being the sale of the pattern. This is expanded upon in Schedule 2: "(c) whether the customer knew or ought reasonably to have known of the existence and the extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);"

In other words if the pattern is advertised as being for home users to make up the items, and nothing is said in the advertising or on the external packaging (if it is an in-person sale) about the need for the copyright owner to be credited, for example, then that might be deemed an unfair term which you could not have reasonably assumed would apply when you bought the pattern. This might make the term unenforceable. The other aspect may be that it would be reasonable for a home user to assume that they could give away the item once made, without any restrictions.

[MrsTwosheds]

Aah…thanks, Andy - that’s good to know. I’ll certainly keep that in mind, now, as this is uncharted territory for me - the idea of recreating pre-designed artwork but having restrictions on its use seems very counterintuitive, so I shall take care.

Thank you so much again for the huge amount of help and support you give us - it’s very much appreciated