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Cool stuff! La bonne tricoteuse Techniques with Theresa Hats
Interview Copyright for knitters Overloaded! Knitting for others

Things you didn't want
to know

It's true, isn't it? You're aware that copyright laws exist and that they somehow apply to you. Perhaps you also wonder if your blissful ignorance will one day be your undoing, like the time you decided not to swatch before starting a project and wound up with a sweater half your girth and twice your height.

No. Let's make sure we're talking about the same thing. Copyright is a legal right that exists to protect both authors and users with respect to the creation and use of literary, artistic, dramatic, musical, and other works. Copyright, as law, sets a standard of behavior enforceable in civil [and sometimes criminal] courts. In this article, I'm not talking about ethics or morality, or some unwritten rule about giving credit to other people; I'm talking about the basics of copyright law.

Don't get me wrong. There are almost no straightforward answers to copyright questions. If you learn anything from this article, you should learn three things: [1] lots of stuff is protected by copyright; [2] assessing copyright infringement is very, very subjective, and practically impossible to do in the abstract; and [3] if in doubt, ask the copyright owner for permission, or get legal advice from a qualified attorney, or both.

Knitty readers are all over the place. Despite the global reach of the Internet, copyright laws are still territorial: each country has its own set of laws and regulations. There is no single international copyright law, but most countries are members of one or more international conventions or treaties that guarantee minimum standards of copyright protection and provide for reciprocity [in other words, if you're writing knitting patterns in New Zealand, you can enforce your copyright in the United States, and vice versa]. Although the essentials of copyright are more or less the same in these member countries, there can be a lot of variation in the details; for example, copyright protection in some countries expires 50 years after an author's death, but in other countries [notably, the United States], the term is 40 years longer.

Copyright law grants the copyright owner a number of exclusive rights with respect to a copyrighted work, including the right to produce or reproduce [copy] the work in whole or in substantial part, to perform it, publish it, make adaptations or derivative works from it, or communicate it to the public. The exact wording, scope, and duration of the rights will vary from country to country, but hopefully you get the idea.

What makes a work a copyrighted work? Well, it needs to be [a] suitable subject matter, and it needs to be [b] original, and must be created by [c] an author resident in the right sort of country.

[a] Suitable subject matter for copyright includes literary, dramatic, musical or artistic works. It actually includes more -- usually databases, sound recordings, films, broadcast programs, improvisational music, and other types of works. For our purposes, though, we'll stick to literary and artistic works. 'Literary' works include printed or handwritten matter, plus computer programs and web pages. 'Artistic' works may be in any medium and include flat pieces, such as photographs, and three-dimensional pieces such as sculpture. There is no set standard of literary or artistic quality, but it's usually not very high. The most puerile bathroom graffiti might very well be suitable literary and artistic subject matter. It's subjective.

It's pretty easy to see, then, how a knitting pattern, chart, or its accompanying photographs can be protected by copyright. It's not quite as easy to see how a handknitted sweater, which serves the utilitarian function of keeping its wearer clothed, fits into the copyright scheme. Let's explore this a little further.

In Commonwealth countries [England, Canada and Australia, for example], there's some precedent for saying that clothing or fabric produced by an artisan may be protected under copyright law as an artistic work specifically, a 'work of artistic craftsmanship ' provided the work exhibits a sufficient amount of artistic judgment. In the United States, courts have been reluctant to grant copyright protection to clothing, but there is scope for copyright protection of garments that contain elements reflecting the designer's artistic judgment, if that judgment is not affected by functional considerations. Now, the U.S. courts haven't met Kaffe Fassett or Elsebeth Lavold yet, but it's probably a good bet that a knitted item incorporating an original, artistic arrangement of colour or stitchwork could be protected by copyright as well.

In other words, an Aran or Fair Isle could contain enough artistic judgment in the selection and arrangement of even the most traditional patterns to merit copyright protection. On the other hand, you'd be hard pressed to prove that a plain ol' pullover in stockinette deserves the same consideration. Something with a little bit of a stitch pattern -- it's somewhere in between, but unless you're the risk-seeking type, don't assume that copyright doesn't apply.

[b] Whether a work is sufficiently original is also a subjective assessment. Original, in this context, does not mean 'unique' or 'new.' Original means that the work must have originated from the author. Certainly, the author will have been inspired by, or may have based her work on, someone else's. That doesn't mean that the work is unoriginal.

Is there a minimum threshold of effort that must be added? Yes. What is it? I can't tell you. There's no hard-and-fast rule defining originality. Sometimes originality is defined as 'not a copy,' but that's not a very clear answer either. Asking 'how much must not be copied?' is like asking 'how much has to be original?'

[c] The author of the work must have been resident in the country in which the copyright law applies, or at least must be a national of a country that is also a member of one of those international treaties.

The general rule when determining who owns copyright is that the author is the first owner of copyright. The author may transfer copyright to someone else, who then becomes the owner. Sometimes this is deemed to have happened automatically if the author created the work during the course of employment. The copyright owner may give permission to someone else to do something that is within the owner's exclusive rights. This is usually referred to as a licence, and doesn't mean that the owner gave up all her rights.

Copyright protection is automatic. Some people think they can rely on online copyright registration databases, such as the one provided by the U.S. or Canadian copyright offices. You can't. In some countries, there was a time when a registration was required in order to own copyright, or a work had to be marked with the universal copyright symbol [©] in order to be protected, but no longer. Any original work of suitable subject matter, once it is created, is automatically protected by copyright whether it's registered or marked with a © or not. Mind you, registration and marking may confer additional benefits, and registration may be necessary in order to start a lawsuit in certain countries, but you don't need to have a registration in order to allege copyright infringement against someone else.

Infringement of copyright is doing anything within the exclusive rights of the copyright owner, when you don't have authorization to do it. Unlike criminal acts, your intention doesn't matter. Even unconscious copying may be an infringement. The financial consequences of infringement can include the payment of damages, additional punitive damages, and the copyright owner's legal fees. Enforcement, however, is not automatic. It's up to the copyright owner to make sure her rights are being respected.

Some uses of copyrighted works do not constitute infringement. There is a certain amount of reproduction or adaptation that can be made for certain purposes that is considered 'fair dealing' [in Commonwealth countries] or 'fair use' [in the United States]. The scope of fair dealing or fair use varies from country to country; for example, while parody is a famous exception to copyright infringement in the United States, it's not so popular with courts in Canada. The circumstances that give rise to fair dealing or fair use also depend on the facts of each situation; don't assume that you're justified in making copies of patterns for your best friends just because the pattern book is now out of print.

Copyright doesn't cover ideas or techniques. Nifty concepts, like how to knit reversible cables, or a neckwarmer worked in intarsia giraffe spots, may be fantastic new ideas. But these are simply techniques and concepts, and are not protected by copyright.

What is copyrightable is an author's expression of these techniques and concepts, in the form of written instructions, photographs, diagrams, patterns, or even knitted objects. If the creators of these techniques wished to protect the techniques themselves, they would have to treat them as trade secrets or obtain patent protection. However, trade secret protection requires that the technique be kept confidential and shared only under strict secrecy provisions -- not very easy in the knitting context, and not very useful if another knitter can figure out the technique for himself without access to the 'secret.' Patenting involves an examination and registration process that takes time and money.

As you read these questions, you might have the unsettling feeling that the answers aren't really answers. You're right -- they're not. Questions like this can't be answered definitely or reliably without due consideration of the ins and outs of your own country's legislation in the context of the facts relevant to your own particular situation.
If you have burning questions that need to be answered, the safest route is to retain a qualified copyright attorney to give you advice. No, it isn't cheap, but if the question is important, you should weigh the cost against proceeding on bad advice or no advice at all. You could try self-medicating, but I won't pretend that you can find the answers on your own, even if you do read all the copyright legislation in the world from beginning to end. Quite simply, the answers aren't all in there. A lot of words thrown around in copyright laws, like 'original,' 'substantial,' and 'fair,' are further defined in each country's case law as copyright lawsuits are tried in the court system. And even then, you can't be 100% certain that if you were hauled into court, that the judge would agree with your interpretation of the law.

By the way, few judges knit.


The building blocks of stitch patterns -- knit, purl, cable, twist, increase, decrease, yarn over, and so forth-- are not protected by copyright.  They're techniques. However, their combinations might be protected.

If the stitch pattern is in the public domain, then the answer is yes, you can use it. However, it is not so easy to determine whether a stitch pattern truly is in the public domain. 'Public domain' does not mean that the stitch pattern or other work has been published and is freely available. 'Public domain' means that any copyright in the work has since expired.

Where have you seen the stitch pattern? Is it a traditional stitch handed down from the knitting dawn of time [which suggests it is traditional], or is it someone's original creation? Is it in every stitch dictionary you've ever consulted, or have you only seen it in one place? The more common the stitch pattern is, the more likely it would be considered to be in the public domain.

This does not mean, by the way, that you can just slap your stitch dictionary on the scanner and publish a copy of the chart or photograph. Do your own work.

Even if you’ve determined that the stitch patterns you want to use are traditional, there might be more to consider. An arrangement of selected traditional stitches may also be protected by copyright, if the arrangement itself is original.


To put the question another way, is there copyright in the store sweater? The answer is a resounding maybe.

We've already discussed the notion of a sweater as a copyrightable work of artistic craftsmanship. If we accept that this store sweater is such a thing, then yes, it's protected by copyright. And yes, publishing instructions telling other people how to replicate it may be a form of authorizing or counselling infringement.

By the way, copyright aside, there are other ways to protect a sweater design. It could be the subject of an industrial design, also known as a registered design or a design patent. Such registered designs can offer more definite protection than copyright, and there's no fair dealing or fair use defence. However, registered designs are more expensive to obtain than copyright, and of shorter duration. A sweater design could also be protected through unregistered design or trademark rights if the designer could prove she was known for or associated with a certain style of design.

Both of these alternative forms of protection are less common, but you should be aware that they exist and that they are being used to protect clothing designs. So, even if you don't think the sweater is protected by copyright -- well, you never know what other rights the designer may be able to assert.

But why are you following other people's trends, anyway? Shouldn't you be busy setting them yourself?

It depends.

Occasionally you hear [or read] people quote a 'ten percent rule' or something similar -- for example, if you change 10% of the garment, or if you change five, seven, or ten things about the garment, you've done enough to make the design your own. Those rules are not reliable. What sort of 'things' can you change? Colour? Yarn choice? Gauge? Do those changes necessitate any input on your part, besides some number crunching?  Sometimes, you can't even find five things to change. Consider the sock or the tube top. Yet those patterns may be just as deserving of copyright protection as an Alice Starmore design.

An assessment of copyright infringement is not merely a question of quantity; it's a qualitative matter as well. There is no set definition of 'reworking;' there is no magic formula to calculate infringement. It's a subjective question: for you, for the potentially offended designer, for your lawyer, for a judge or a jury. In the end, the question of whether or not you've infringed someone else's rights in a pattern or garment can only be answered by setting out the patterns and the finished garments side by side and deciding whether or not, overall, your version is substantially similar to the original, and whether the elements you did take were protected by copyright according to the law in the relevant jurisdiction. 

Perhaps an easier way out would be if you were to work from a pattern that you know is in the public domain. See the next question.

It depends on how vintage 'vintage' is. As we've seen, after a certain period of time, copyright in the pattern expires. Once copyright expires, the pattern enters into the public domain.

However, there are a number of wrinkles. Copyright may expire in one country before it expires in another, so the pattern may enter the public domain in one country, while remaining protected elsewhere. If you're thinking of putting those patterns on the Web, avoiding infringement in another country becomes a tricky affair. Furthermore, thanks to the accession of the United States to international treaties, works of non-U.S. authors that used to be in the public domain in the United States but protected elsewhere automatically regained U.S. copyright protection in 1996.

You may be wondering whether the republication of an out-of-print pattern that might still be protected by copyright could escape infringement by being characterized as a 'fair use' or a 'fair dealing.' Keep on wondering. Although access to the original work is a factor which may be taken into consideration, the fact that a book is out of print is no guarantee that you won't be liable for copyright infringement. Not only that, but a finding of fair use or fair dealing can also be influenced by how much of the original work is taken. The more of the work that is copied, the less inclined a court might be to find the copying 'fair.'

In short, there are only two ways to be certain whether you can reproduce a vintage pattern. The first is to get permission from the current legal copyright owner, if you can track him, her, or it down. If you can get permission, get it in writing, and file it for safekeeping. The second is to get confirmation [preferably, from the copyright owner or a qualified attorney] that the pattern has indeed passed into the public domain.

When you follow a knitting pattern, you're reproducing the knitted item. Well, obviously, that's what you're meant to do. The question is, did the owner of copyright in the knitted widget [and this presupposes that copyright protects the widget] mean for you to make widgets for sale, or just for yourself and for others as gifts?

It's not always easy to determine the intention of the designer. Some designers, when they sell a pattern, make it pretty clear that their designs may not be knitted for resale. Others may be silent on the subject. Whether or not your purchase of a pattern authorizes you to make widgets for sale depends not only on copyright law, but also on contract law -- and a dissertation on contract law is way beyond the scope of this article.

In the end, it's safer to err on the side of caution, and answer 'yes.' Yes, you should ask permission from the copyright owner first, or failing that, get a proper legal opinion whether you need to get that permission. What's the worst that could happen? The copyright owner says 'no,' so you go on to design and sell your own original whazzits instead and make a small fortune. Your friends turn green with envy.

We've only covered the basic elements of copyright. It only gets more complicated from here.

To recap the moral of this article:
[1] Lots of stuff is protected by copyright. Some stuff isn't.

[2] Assessing copyright infringement is a subjective question that depends on the facts of each individual case. Don't expect anyone to diagnose a copyright infringement problem for you over e-mail or a phone conversation.

[3] If in doubt, ask the copyright owner for permission, or get legal advice from a qualified attorney, or both.

If you have concerns about the potential consequences of your actions, you should consult a qualified attorney in your own country first. Keep in mind, though, that intellectual property law is usually treated as a specialty area. Your typical general practice lawyer and your average legal clinic staffer usually doesn’t have education or training in this field, and would have to engage in a lot of research before they’d be able to provide you with a reliable answer. If you try a little legal research on your own, be aware that the answers are not as straightforward as the statutes might lead you to believe.

If you want more information, try surfing these links:

National copyright offices
United States
United Kingdom

National intellectual property offices
United States Patent and Trademark Office
Canadian Intellectual Property Office
The Patent Office [United Kingdom]

Free legal research
Copyright legislation [these sites purport to maintain up-to-date information, but it’s your responsibility to make sure they’re really current]:
United States Copyright Act at Cornell University
Canadian Copyright Act at the Department of Justice
UK Copyright, Designs, and Patent Act 1998 and related laws
Australian Copyright Act 1968 at the Attorney-General’s Department ]

Also check out the international Legal Information Institute websites, which provide links to cases and legislation:
Legal Information Institute [hosted by Cornell Law School]
Canadian Legal Information Institute
British and Irish Legal Information Institute
Australasian Legal Information Institute

Lawyer listings
Contact your county, state, or provincial law society for help on finding the right lawyer in your area.

A little light offline reading [your best bet is a law school library]
U.S. copyright law: Nimmer, ed., Nimmer on Copyright [Matthew Bender, looseleaf service]
Canadian copyright law: McKeown, Fox on Canadian Law of Copyright and Industrial Designs [Carswell, 2000]
U.K. copyright law: Skone James et al., ed., Copinger and Skone James on Copyright [Sweet & Maxwell, 1991]
Australian copyright law: Lahore, Copyright and Designs [Butterworths, looseleaf service]



Jenna fantasizes about moonlighting as a knitwear designer; the rest of the time, she's an intellectual property lawyer in Toronto.

She'd like to thank 3c for a kick in the pants.