more copyright ponders

Jul 21, 2007 48 Replies

But, just to be totally nitpicky, the designer does have the right to forbid public display. I can't imagine why they would, but public display is one of the rights that the copyright owner has.

US Copyright law defines "public display" this way:

"To perform or display a work ?publicly? means ?

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."

Again, the copyright owner could choose to be nitpicky about this, and some have. This is particularly true if the design is of a licensed character or other licensed image. Some copyright owners are fine with your putting an image of the stitched design up as long as you clearly identify the copyright owner. Some don't want images up that are too detailed (i.e., they don't want someone to be able to recreate the piece using your image as a pattern) or that aren't somehow rendered unusable for nefarious purposes.

The copyright owner has the right to control public display of the work. Most are not going to have issues with the situations you mention.

I think it's a bit more than that. Yes, these are subjective judgment calls--no doubt about that. However, I don't think it's true that profit is essentially the only thing that separates fair use from infringement. The actual fair use language in the law is:

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include ?

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

(which is very similar to what you stated above) There's also some guidance offered at:

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don't think it's a safe bet that it's ok as long as you'renot making money off it. For example, one example they giveis that it can be fair use to show a legally obtained copy ofa movie to a class *for educational purposes* (i.e., they'rewatching the movie to learn about something specific). However,showing the same legally obtained copy of a movie to the classfor entertainment purposes might not be fair use. Or, as inone of the questions you asked above, if you share your patternswith friends, even if you're not making money off the deal,you *are* having an impact on the market. And really, when itcomes to patterns, most of the fair use possibilities don't applybecause you're talking about the whole pattern (or nearly so),which is a problem right off the bat.

Also, to pick a nit, copyright law has a very specific definition of "visual art" which many patterns won't achieve. Things that don't meet the criteria for "visual art" can still be copyrighted, but there are some specific things that deal only with "visual art." Copyright law defines visual art as:

"A ?work of visual art? is ?

(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A work of visual art does not include ?

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B) any work made for hire; or

(C) any work not subject to copyright protection under this title.23"

Best wishes, Ericka

I've found it interesting to play the devil's advocate, so to speak, and read the information you offer. This is a sticky matter that I never even considered. I did have a friend, my original mentor in this art, who regularly sold her samplers to an antique dealer. Neither of them had any qualms receiving or selling samplers "found in some old lady's attic". I was quite uncomfortable with my friend's (and she was an old lady, but now I am her age - yipes!) actions for the simple reason I believed she was representing her stitchery to be actually antique. She was darn good at making them look old.

Fortunately, I have never sold my work nor do I intend to. The closest I will ever come to that is when, upon my death, my daughter liquidates my collection of work, which is rather extensive. I will apologize to the nameless copyright holders of 3 (I think) rooster patterns that I shared with one of your group. However, the recipient did not utilize those patterns, so perhaps I am off the hook.

This conversation has surely been instructive and I appreciate all your responses to my theoretical and practical questions.

Deb :)

Which ones? I do try to comply when I am aware. :/

Meredith

messagenews: snipped-for-privacy@mid.individual.net...

Deb

Interesting, and not totally uncommon. The shop I used to work at, which is a framer, also houses an Antique Needlework Boutique. The owner of the shop has a good background in conservation, and textiles, taken classes and private tutaleage at the Smithsonian, etc. The person whose collection is that basis for the boutiques has become a learned collector, and shops all over the world - the linens range from handwork done in the early 1800s, some earlier Berlin work, to things like table linens, guest towels from the

20th century. My point -eventually - when she was considering purchasing new pieces - old handwork - we would generally inspect them carefully. Opening up the framing - if they were framed - and working with magnification, jeweler's loops to really look at the thread and ground cloth. There are ways to establish a basic age idea- even the alphabet on a sampler. There is so much more to the age basis than just some fabric with a couple of tears and some staining. Plus, the collector would research out the provenance. It was really interesting, I learned a lot. And, FWIW, a few of the pieces in that collection have indeed been licensed, and charted and are sold by a couple of different designers (only 1 gets a license for a particlar piece) which I see in needlework shops. It was great experience, and we would do any cleaning, re-framing of the pieces.

It's sad for people to fake that - they do a disservice to themselves, and their buyer. Nothing wrong with saying something is an antique style, or in the style of a whatever. Sadly, many of us shopping for antique needlework may buy on a whim, and not be able to really substantiate what they're told or examine the piece. OTOH, art forgery has been around about as long as art. And if people are happy with what they get to look at, and not thinking about it as a valuable antique.... There is a reason for "caveat emptor" .

Just as interesting are the different responses and attitudes that we all have.

ellice

Ellice, I don't think the decorators who purchased my friend's supposed antiquities examined them to the degree you describe. As I said, I was quite uncomfortable with her actions. Further, she may have been paid well, but certainly did not need the money. Rather like a wealthy dowager who indulges in kleptomania. Simply put, it was dishonest. I personally enjoy making reproduction samplers for my own pleasure, and have never tried to pass them off as anything but that.

Deb

Deb,

Most people don't have the opportunities to examine antique samplers that I did. But....people who are buying them, as antiques, IME, make that examination - or a provenance from some established dealer/appraiser part of the negotiation. I understand your discomfort. People get fooled honestly often enough - such as buying a sampler done in the 50s that looks like one from the 19th century, only it's just a repro done in the 20th century. It takes education to be sure - with collecting about anything.

OTOH, if you buy what you like, that's great. I have plenty of antique reproduction furntiure - mixed right in with the really old stuff.

Funnily enough, last year when we were shopping for an antique sideboard, there was a dealer with some textiles at the show. I kept going back, and was very drawn to a few pieces. Most of which were way too pricey for me. They were at market kind of prices -but still around $1800 - $2300. There were a couple that were under $500, one in particular which I got down to around $375. I liked the dealeer, she was very familiar to me, as were a couple of the expensive pieces - couldn't decide if they'd been reproduced by one of the local designers (Handwork & Of Female Worth are very local here). Ended up I didn't buy anything. But, when I was over at the other shop (where I used to work) and telling her about the samplers - the reason the expensive ones were familiar - I'd helped do the conservation/framing of them.

I'm sorry you had to go through that uncomfortable situation. It's so awkward when someone that you think highly of, and like, behaves in a way that you find unethical. But, dealing with those situations is yet another whole discussion.

Ellice

I've only purchased one sampler that was supposedly 'old'. I really don't think it was, but I liked the look of it. It was on perforated paper and different from anything I have. I have a number of authentic antiques, both purchased and inherited, but again as you comment, I only buy what I like. I am going to live with the piece, so why else? As for my friend, while she taught me a number of wonderful techniques, I agree with you that she was short-changing herself. She was actually allowing her talents to be credited to someone else - the supposed actual creator of the antique sampler. I think it would be much more wonderful to say "This is my work - my reproductions are so skillful they will blend beautifully with your actual antiques!"

Deb :-)

It's one of the reason's when I do a reproduction sampler, I do not use the original stitcher's name and dates, I always replace them with my own.

Firstly, I'm proud of my stitching and would like folks to know who and when, and I have an uncomfortable feeling about passing my work off as old and valuable. (I know, I know - it is valuable, just not antique valuable - yet)

Marg

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