12 July 2016
What are the rules around using patterns and fabrics to make things to sell?
Whether you are selling the products of your hobby or have consciously decided to go into business selling your hand made goods, there are some elements of intellectual property law that will apply to you.
BUT before you get too worried there are a couple of fundamental points you need to understand:
• This is general information and if you feel you need better answers, then you should get advice specific to your circumstances.
• We are talking about Australian law. Law is different in different countries.
• Law is rarely black and white. There are always shades of grey; otherwise no one would ever go to court to argue about it.
• ‘Intellectual property’ is a general term that encompasses different laws including copyright, trade mark, designs, patents and trade secrets.
• Intellectual property law relies upon the person who has rights under the law taking action to enforce those rights. Not everyone does.
• There is an element of risk in every business endeavour. The amount of risk you are prepared to bear is likely to be different to others. Some people work on the ‘forgiveness is easier than permission’ principal, and others want to make sure that everything they do is absolutely right. You need to work out your own appetite for risk.
Copyright in patterns
When you use a pattern you have bought or found on the internet, often there will a copyright notice somewhere on the packet or the pattern that says what you are entitled to do with it. For example, some patterns might be ‘one use only’. In theory, you are supposed to buy a new copy of the pattern for every item you make from it. Realistically, tracking how many times you have used a pattern is only going to be financially worthwhile for the pattern publisher if you start producing lots of those items.
However, if there is no notice easy for you to read before you buy the pattern, and the purpose of buying a pattern is to use it to make something, then there may be an implied licence to use that pattern for the purpose of making as many products as you want, even for sale. In addition, due to an overlap in design law and copyright law in Australia, where you create a three dimensional item from a two dimensional pattern, unless the pattern is a registered design, it is possible that you will fall within the exemptions now included in the copyright act, and therefore not be in breach.
Copyright in fabrics
Some fabrics will note on the selvage that they are for ‘non-commercial home use only’.
There is certainly copyright in the artwork in the design printed on or woven in to fabric. Copying that design, or a substantial portion of the design elements of that design, can be a breach of copyright. So if you like a pattern showing a particular flower or breed of dog, and then you copy that pattern directly or by designing something substantially similar to create your own fabric, could in fact be a breach of copyright.
Recent examples of this were City Beach copying the rose prints designs of Seafolly used in it swimwear fabric and Cotton On copying the layout of words and images on a t-shirt designed by Elwood. However, neither one of those cases actually looked at whether there was any breach in copyright in using the fabric to create the clothing. There also doesn’t appear to be any cases clearly on point in Australian court decisions.
Even decisions in the United States have found that a fabric designer doesn’t actually have any right to restrict the use of their fabrics in creating a product. A 1997 1st Circuit Court case of Precious Moments v La Infantil found that there was no copyright infringement in using a licenced fabric to make bedding for commercial sale. The licence was provided to the fabric manufacturer to apply the design to the fabric. That licence was able to be enforced. However, once the fabric was sold, the court found that the designer had no right to restrict how it was used, even for commercial purposes.
Apparently, a number of companies including Disney and Mars have since been sued for attempting to stop ebay sales of items made from their licenced fabrics.
On the other hand, you do run a risk of being sued if you use a registered trade mark in your design and it is construed as being used as a trade mark rather than an illustration. The Louis Vutton classic LV design is a trade mark and its use in fabric that is substantially similar to the original has been held to be an infringement. So do be careful how you chose your patterns.
It is also possible that a design may have been registered, and use of a registered design may be an infringement for which you could be sued.
What if you get a cease and desist letter?
If you do receive a cease and desist letter, don’t panic! Take your product off the website straight away to demonstrate good faith, and then get advice. Sometimes people just want you to take down the offending item. Other times they might seek an account of profits or other remedy. If they want more than simply removing the product from display (permanently), and complying with that direction is worth more to you than you can afford to lose, then get legal advice before responding.
Founder and Principal of Onyx Online Law
Jeanette Jifkins is the founder and Principal of Onyx Online Law, an Australian based law firm with the focus of supporting businesses with an online presence. She has extensive experience with a broad variety of corporate and commercial issues including contracts, mergers and acquisitions, business structures, employment and governance.
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