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.
Leah's post is in red, my comments are in black:
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.
(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.
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?
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: http://katespaindesigns.blogspot.com/2012/03/moving-forward.htmlI 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.
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.