Thursday, April 5, 2012

Hot Air

You are going to need a fresh drink and possibly an aspirin for this one.....

Have any of you been following the Kate Spain copyright debacle?

Long story short, Kate is a Moda designer. Her fabrics were used in a quilt that was published in a C&T book. C&T enlarged the photo of said quilt and printed it on vinyl tote bags that they sold. Kate wasn't happy. The whole issue has the quilting community up in arms. Personally I want to tell everyone that isn't a qualified intellectual property attorney to keep their opinions to themselves.... but that would mean I couldn't express mine.

Leah, over at The Free Motion Quilting Project has an extensive post on the situation that is getting tons of attention. I don't have a grudge against Leah, just a difference of opinion. I think there are points she needs to consider. Far too many points to just post a comment on her blog.

You can go there and read the entire post if you like, but I've copied and pasted the interesting parts here to save you the trouble. I didn't ask Leah's permission, she thinks things should be free, so she shouldn't have a problem with this. These are her views on the subject: "I for one want to see an end to excessive copyright, particularly on blogs.If you post something: an idea, a technique, a pretty picture, whatever, man up and give it away for free. REALLY free. As in copyright free - as in anyone can use whatever you post for ANY reason." Thanks Leah, I think I will take you up on that. Umm, but what if someone else posts something of mine that I didn't want to be free? How will everyone know the difference?

Leah's post is in red, my comments are in black:

Friday, March 30, 2012
Copyright Terrorism
Oh yes, it's high time I address this hot topic. Of course, everyone has a different opinion when it comes to intellectual property rights, and you may or may not agree with mine.

Let's start with the fact that copyright and opinion have nothing to do with each other. Copyright has to do with the laws of our country. End of discussion. Opinions are something that everyone is entitled to, so feel free to express yours.

As always, read if you want or go enjoy all the free designs I've shared so far (all of which you are free to use for whatever reason).Copyright issues seem to be cropping up with increasing frequency in the quilting world and I for one would like to try to stem this flow, or at least open your eyes, to the very real threat looming for our craft.What is this threat? Where is it coming from?It is coming from within our own ranks. Quilters with a certain penchant for copyright and legal wrangling are turning our open, creative craft into a mine field of rules, regulations, licensing, attribution, and copyright lockdown that it's enough to make anyone set down their rotary cutter and sell their sewing machine.And these particular Copyright Nazis (I really can't think of a better name for them) are not just vocal, they are flexing their arm powerfully enough to include copyright notices within quilt shows.Just recently I was contacted by AQS asking if it was okay if a quilter used my designs in a quilt entered into one of their shows.At first blush, that seems like a good thing. I'm excited to know the designs from this project are being used and seen in shows. Of course you have permission! Run with it!But then I started thinking - they were referring to a QUILTING DESIGN. A squiggly line drawn in thread by a machine on a quilt, like any one of these:

(Sorry, the photos didn't transfer.) I agree with Leah, things have gotten out of hand in some areas, but that is mainly because people, like Leah, overreact and stir up trouble when there really isn't any. The sky is not falling, you can use your fabric to stitch up any quilt you like without special permission. That is what fabric is intended to be used for. Leah goes on to explain the Kate Spain issue and her opinions on using her work, but I'm going to jump way ahead in her message to these points she is trying to make: Caution, Leah is even more long winded than I am!

If I have to worry about how I use a raw material (fabric) how is that any different from a lumber company copyrighting a special type of wood or a yarn company copyrighting an exclusive type of yarn? THIS IS RIDICULOUS! As I said before, this situation only creates questions, questions, and more questions. Let's work backwards: the tote bag was printed with a PHOTOGRAPH which was taken by a photographer for the book. Whoever that person was, they aren't credited in the book.The QUILT was designed and created by Emily Cier.The FABRIC used in the quilt was designed by Kate Spain.Who really own the copyright?Is the quilt actually Emily's or should she pay licensing fees to Kate just to sleep under it? And if Kate is really wanting everyone to use her fabric for any reason, why does she print "for personal use only" on the selvage of her fabric? That statement implies a limitation and a rule of what can and can't be done with it!(Updated: Fandango did not have this printed on the selvage)

I wonder if Leah has ever read the children's book "If You Give A Moose A Muffin"? She is really on a roll. Obviously the photographer didn't request print credit for the photographs in his contract. That contract might even say that C&T owns the rights to said photos. There is also a very good chance that there was no contract with the photographer. C&T is family owned, they could have taken the photos themselves. As to "Who really owns the copyright?" Which copyright? Why do you care? KATE DOES NOT HAVE A PROBLEM WITH FABRIC BEING USED IN A QUILT. Stop trying to make a big deal out of it. NO DESIGNER HAS A PROBLEM WITH USING THEIR FABRIC FOR ITS INTENDED PURPOSE. Really, this isn't that difficult to understand. The problem is with the vinyl bags that were mass produced, the quilt and photo are just the vehicle that moved Kate's art to the bag. Nobody has EVER said you have to check with a designer before you make a quilt for yourself or for sale.

As for the nonexistent "personal use" statement that Leah accused, then corrected that Kate doesn't use, here is a little side bar: Most fabrics are printed outside of the United States. That means that if a foreign print plant "mistakenly" prints too much fabric and sells it "out the back door" to a manufacturer, a designers fabric could end up anywhere without any compensation. The designer would then have an expensive international copyright issue, which is very difficult to deal with. Ask me how I know. The print plant will deny selling the fabric, the manufacturer will claim they purchased it through a jobber. It is a huge expensive mess, which drives up the cost of the fabric you purchase. BUT if the fabric is clearly printed "for personal use" right on the selvedge, then the manufacturer is clearly in the wrong. All the better to make your case in a foreign court.

Unfortunately this entire situation sets a precedence. C&T Publishing took the blame and settled, which means the real question of who owns the copyright in this situation will never be battled out in front of a judge who would give us the legal guidance we need to know what is right and wrong in this situation.Even better would be to get a judge who knows copyright law and understands the public domain nature of utilitarian industries. Personally I think copyright has gotten way out of hand in the quilting world, which is only one step shy of the fashion industry.And guess what the fashion industry is? Open, public domain. I have a favorite jacket that I love wearing in the winter, but it's getting worn out. I could take that jacket and make an exact copy of it. An EXACT COPY. I could even turn that copy into a pattern and sell it.I would not be doing anything wrong. I would not be violating any copyright. Clothing is completely open because a long time ago the US government realized it would be ridiculous to try to copyright clothing - a utilitarian commodity.Imagine if a company could copyright a zipper - we'd all have to pay licensing fees just to use it. Or the collar of a shirt. Or the way your elastic pants fit.I can feel you nodding your head in agreement. You wouldn't want to pay $50 extra for your socks just because the manufacturer had to pay an expensive licensing agreement with the copyright holder of sock design.

There she goes again, making mountains out of molehills and trying to make this issue much messier than it really is. Honestly Leah, haven't you ever seen designer clothing? People DO license sock designs and you have to pay more for them. You could probably find a pair for $50 anywhere in New York. There is an entire knock-off industry that makes billions of dollars for lawyers in the fashion world, is that the direction you want to go with our industry?

The key point that Leah seems to be missing is that copyright laws were written to protect the little people. Without them small designers could create something only to have it taken by larger corporations with bigger production budgets and produced in mass. Leah doesn't think that is a problem, she seems to think the designer should just design something else and move on. I find it hard to believe that she thinks that "the biggest bully wins" is the foundation that we want the art world to be based upon. I find it harder to believe that she sees quilts as "just another blanket" and not a form of art. I wonder how much thought Leah has given to the bigger world outside of her blog?

But how is this any different from a quilt design? We use basic geometric shapes: squares, triangles, circles, hexagons, diamonds that have been around for hundreds of years, yet quilt designers are increasingly demanding that this is THEIR quilt pattern, or THEIR exclusive technique.

I'm not going to address technique, because I only deal with copyright as it has to do with the written word, but yes Leah, the unique way that I arrange those basic shapes and then write instructions so that you can copy my work is something I own. I will agree that I am a little tired of people writing something as general as a log cabin pattern and slapping a copyright symbol on it because they found that symbol on their computer, but this is a free country and if they can find someone to purchase their product, well we all know what PT Barnum said.

Current copyright idealist say that without copyright, the creator won't want to create because they're constantly being copied and ripped off all the time.The current mentality is that being ripped off, an example being those eco totes with Emily's quilt and Kate's Fabric, is the worst thing in the world because the designer isn't getting paid for their work. Kate even wrote on her blog that if she didn't protect her copyright, she wouldn't be able to make a living. WTF?! How much did sending your lawyers after C&T an Emily Cier cost?

I would like to suggest that those people that Leah refers to as "copyright idealists" and I would refer to as law abiding citizens, are actually saying that without copyright creators won't be able to AFFORD to create. Kate is making the point that not stopping someone from using your image could set a precedent that could lead others to believe that it was OK to use her images for their own profit. Don't quote me on that, I'm not an attorney and I didn't sleep in a Holiday Inn Express last night.

And this brings us back to the core question - did Kate even have copyright over the image of the quilt in question? Was it not Emily's quilt because she cut the fabric up and turned it into a quilt? Or wasn't it the photographers copyright because it was his / her photo?The idea that an eco tote being sold with a photo of Emily's/ Kate's quilt on the surface would suddenly beggar Kate Spain puts me into a rage. It is such utter nonsense. The fact is, if Kate had simply requested that her name and Fandango line was mentioned somewhere on the tote, she would have had a wonderful advertisement for her fabric being sold all over the world. She would likely have sold even more fabric, and gained loyal customers for future lines too.The idea that without copyright all designers will be broke and stop designing is simply not true.The reverse is the truth!

The reverse is true? So that "starving artist" thing is just for show - right? In Leah's opinion she seems to suggest that Kate should march directly into her mortgage holders office and hand him a eco tote with "credit" given and demand that he take it as payment. She should probably drop one by the electric company on the way home too.

You would have thought that the silliness would have stopped when Kate personally answered Leah - but NO, that just stirred it up even more. Time for more color coding. Kate's words are in blue.

UPDATE - 3/31/2012I've never received so many responses to a single post before, and I plan to keep the comments open so everyone has a chance to air their opinion on this matter.Kate Spain even shared the following comment which clarifies some points, including a mistake I made about about her fabric:

Hi Leah,Thanks for your thoughtful post and great questions about copyright and the extent to which it is influencing the quilting community. Lots of people think I'm trying to control the ways in which my fabric is used, but that is untrue. As far as making things (quilts or otherwise), please answer these four questions about your fabric use:- Is it just you sitting at your sewing machine making stuff to give to friends/family or to sell?- Are you shipping fabric overseas and having any manufacturing done in a factory?- Are you copying or otherwise reproducing recognizable designs from fabric and printing them onto another material like laminate or plastic and then manufacturing a new product like a tote bag? Or shower curtain?- is your distribution through mass market channels?If you answered Yes, No, No, No, then you really have nothing to worry about! Whatever you are doing with my fabric is fine!Also just wanted to clarify that the selvages on my fabric do NOT have a "for personal use only" stipulation. If you spend your hard-earned dollars on it you should be able to use it however you like! I've written more on my blog to clarify the resolution of this situation and an FAQ: completely agree with you that an absence of attribution is a missed opportunity for both promotion as well as resource material.One last and important thing to know is that I did not make ONE dollar on this, and donated the recalled tote bags to several local charities.Keep up the great discussion!With Kindest Regards,Kate Spain

Sincerest apologies for my mistake about your fabric, but my core issue with this entire situation remains.If I have to stop and ask myself 4 questions before I cut fabric, I simply won't cut it. Because here's something I know about the quilting / crafting world, Ms Spain - it is very rarely black and white or as simple as a "Yes" or "No" when it comes to question #1. The question was: Is it just you sitting at your sewing machine making stuff to give to friends/family or to sell?First off, if I answer "yes" to this question, is that yes to making stuff for family / friends, or is it yes to potentially selling it? Already things are getting confused!

The only reason things are getting confused is because Leah refuses to stop confusing them!

If I plan to sell what I make - what does that mean?

Really? You are just going for theatrics now aren't you?

Can I make something to sell: a quilt, a handbag, a tote, a belt, a skirt, pants, machine cover, etc, etc, etc or not?

Let's review what Kate said: "Is it just you sitting at your sewing machine making stuff to give to friends/family or to sell?" Read it again s l o w l y, I'm pretty sure that she means exactly what she said, you can make something to sell. The operative word is "something" as in one or two, not a few dozen or enough to become a WalMart supplier. That would mean you were a manufacturer and would have to answer differently to questions 2, 3 and 4.

I've been making some form of income from sewing since middle school. Back then I would slice up the leg of jeans and insert funky fabrics into the leg to create homemade bell bottoms. These caught on so well, I began making them for other girls in class.So it's safe to say that EVERY item I've ever sewn since the age of 12 has been for personal AND / OR business use.

Leah has been profiting from sewing for many years. I believe that means that she was charging those friends for converting their jeans. Without going into what I see as a huge possibility of tax evasion issues, I wonder how Leah decides when to charge and when not to? I can only assume that she feels that the time it takes her to post free quilting designs on her blog is not valuable, but the time it took to turn a friends pants into bell bottoms was? What's with the double standard? Or could it be that Leah isn't concerned with payment for the free designs that she post on her blog because she is gaining in other areas? Is it possible that Leah's popular blog has helped her establish a profitible quilting business? I don't know. If that is the case her blog is really advertising. Then again, I just do this for the fun of it.

Kate took the time to explain the situation in the form of 4 questions. Clearly her goal was to make it easy to understand. If you are using any fabric for personal use (yes, even if you might sell that one thing you made later) go for it. HOWEVER if you plan to cross that grey line into manufacturing, you are no longer Susie seamstress that sews for the love of quilting. You will need to put your big girl panties on and act like a business. Yes that means forms and taxes and fees and tons of paperwork. It is part of the package. If you don't like that end of the business - then stay out of the business. It is that simple.

I know I'm not an anomaly with this. I've posted about business before and been surprised by just how many quilters (around 80% I'd guess) make SOME form of money from this craft. It doesn't matter whether you make $50 or $50,000 a year with this, money is money, sales are sales.Which is why this issue is so very important.We want the freedom to make whatever we want for whatever reason. I shouldn't have to ask myself 4 questions! I shouldn't have to question my right to cut up fabric and use it!Because the questions never stop.

Whoa there missy, it certainly DOES matter if you make $50 or $50,000 a year with this. If you are earning income in this industry, above $600 you need to be reporting it for tax purposes. I don't care if you are sitting at your kitchen table or your kids soccer game while you do it. Income in this country is taxable. Those of us that are running legit business with payroll, wage tax, sales tax, income tax etc. look forward to the day when everyone is following the same rules.

Go ahead Leah, excercise your rights and use your fabrics as they were intended and keep giving it away for free if you like. This is America and freedom is what makes this country great, but you also have to play by the rules or stay out of the game. That is why we have laws, even ones we don't like.

I also hope you aren't too upset if someone takes your free quilting designs and puts them into a book and sells them for profit. That wouldn't be a problem would it? You pretty much gave anyone permission to go ahead with that project. If you aren't comfortable with that, you might want to rethink your position. There are publishers out there with a rep for using things that aren't theirs.


Robin Quilts, etc. said...

I was so frustrated when I read Leah's blog but didn't know how to express it. Thank you for doing what I was unable to do. Keep up the great work.

bmayer said...

I was going to e-mail you and ask if you'd heard/read about all of this. Apparently you have! I dont know if you took the time to read the all the responses, but I responded in favor of Kate's position,(and the law!!!)Leah's husband commented on how I was being patronizing and condescending because I asked how she would like it if someone took all her 365 FM quilt designs and slapped their name on it! I really wish you would leave a comment on her blog!

Sew Unique Creations said...

Karen - you rock! Amen girl!

Melisa @ Sweet Home said...

BRAVO! Well said, Karen!

Julie Stewart said...

Thank you, Karen! I have had customers ask me to photo copy patterns from books, because they only like one quilt. I will ask them if they are Leah from now on!

Alisha said...

Karen......C&T confirms thier mistake with the tote bag. My main issue is that Ms Spain denied in her blog that the book was targeted. C&T and Emily both clearly state that the book was targeted and that the issue was only resolved when they got their own lawyers involved. She needs to own up to this....that will make a difference. As of now, I have no respect for her and will not buy her fabrics

Karen said...

Alisha, you are incorrect, In fact, Kate expressly addresses this in her 2nd post on the matter, "Yes, sometimes designer fabric becomes new work in a quilt … when it is so transformed that it’s no longer a derivative work of fabric design and not clearly from the designer in question. This was not the case with the book or the tote bag. Let me emphasize for you all: The book would NOT have undergone this legal scrutiny had the tote bags not been made."

Alisha said...

Karen, Todd Hensley states in his blog,"..this was the first time we learned that Ms Spain was asking us to destroy all copies of the book and tote bag, pay damages, pay attorney fees, or face a copyright infringement lawsuit." "...I was really suprised that they had included the book in the arguement. Certainly it made their case stronger, but the ramifications were way to far reaching for every company publishing quilt images." and finaly, ..." With regard to the book, we were in complete disagreement and stated that we would not comply with their cease and desist. This was not acceptable to their side and they continued to force the issue with the book. At this time, we engaged our attorneys to respond concerning the book and to work out a settlement agreement..."

Now, Ms Spain may not have exactly stated in her initial blog that the book was not targeted, and used a cleverly worded statement to support her and deny responsibility for this debacle....but it was there!!! read between the lines.

Karen said...

The only thing to read between the lines is that Kate was enforcing her rights according to the laws of our country. Magazine publishers aren't concerned with this issue. I haven't spoken to ONE that sees this as their problem. The point that you are missing is that Kates art was reproduced without permission on a product that was NOT a quilt nor was it part of instructions for how to make a quilt. It was an entirely different product that was NOT made from Kates fabric and was sold for profit. The appeal of that product was largely, if not entirely, because of Kates art. The book HAD to be included because it was the vehicle that moved her art to the offending bag. What you have a problem with is our legal system. Screwed up as it might be, it is the one we have and nobody should be taken to task for following the law.

Wendy said...

I think it's a bit unfair to accuse her of tax fraud when you don't actually know her financial situation.

Erin S. Mesquite TX said...

I agree.. you may disagree with her opinion. Everyone has one and is perfectly welcome to express it. However, you then taking that to a level of accusing her of tax evasion and fraud? Really? You act like it is simply HER opinion driving this? It isn't. It is all over the blog world and she is NOT the only one that disagrees.

The plain fact is she is perfectly allowed to disagree with how crazy this copyright stuff has gotten. I agree with her on many points. I actually went to a blog the other day. The girl was going on and on about how upset she was. She was selling a pattern of a cupcake potholder and griping about how she had found another person selling one too and how she should sue them for stealing HER design. Seriously? No one has ever designed or sold a potholder with a CUPCAKE on it??? Come ON!

So yes, it has gotten ridiculous in many many ways. Also, the 1st question posed by Kate could be interpreted 2 ways depending on where the emphasis was placed in the sentence. This is why the written word is so often misinterpreted. It can be read as you read it..or it could be read to say "Is it just you sitting at your sewing machine making something for you and your family....or to sell? I am paraphrasing here.. I am not able to get to it to copy and paste but my point here is it can be read to mean that OR SELL being something that is not included but as an exception and not to be ok. Sorry, I am stumbling here in how I am trying to get this across. I hope that came through ok.

Regardless, if you disagree with her, that is your right as it is hers to disagree with the copyright issues. But going to accuse her of tax fraud and breaking the law...not necessary and seriously bad form.