Sewing pattern copyright law – myths debunked
By Deby from So Sew Easy
There were a couple of articles in July that had a lot of interest, both about sewing to sell. How to price your work and a round up of projects that are good to sell.
Good to see so many people were interested in this subject, but at the same time I got such a lot of emails telling me that it was illegal to sell things you had made from either someone else’s sewing pattern, or from licensed fabric. Or that you had to buy a licence from the pattern designer if you wanted to sell an item made from their pattern, known as a cottage licence. Or that if you want to make more than one item (such as 3 matching bridesmaid dresses) that you have to buy a new pattern for each person! Sadly it only proves that there is a lot of mis-information out there which is holding you and your business back!
So I got in touch with a couple of contacts, one of whom is a lawyer, and another who has a lot of personal experience in copyright law, and scoured the internet looking for definitive advice on this subject. There is too much nonsense out there. I had to wade through a lot of people who were apparently stating a fact but in the end were just really passing on hearsay and opinion without any basis in fact at all, and thereby just perpetuating the myth that you cannot sell certain items.
I’m trying to put the record straight here in an easy to understand way, but at the same time it is a VERY complicated area and opinions, even legal opinions, can sometimes vary. Please therefore make your own enquiries with your lawyer if you wish to set up any kind of business and think these sort of restrictions might apply to you and your products. Different laws may also apply to different regions of the world. Check your local laws.
Sewing pattern Copyright law – myths debunked
I’m aware that some of which I state here below may be controversial, and not everyone will either agree with me or like what I say. Of course as usual all comments and feedback are welcome. If you do make a statement of fact that relates to the law regarding sewing patterns and copyright, that contradicts any of these statements below, please provide a source in law where such information can be found and verified. Saying this isn’t true because I read it on the internet, only provides even more confusion and passes on inaccurate information which is something we are trying to avoid.
1 – If you make something yourself from a commercially available sewing pattern, it is illegal to sell it because of copyright laws.
Not true. A sewing pattern itself may be subject to copyright law, but that is only the pattern illustrations, diagrams, written instructions and the pattern envelope art (sometimes, again there are limitations). That means that you cannot simply photocopy or scan in the sewing pattern and then sell copies of it. Naturally, I’m sure you wouldn’t do that. Although if you look on Etsy there are plenty of seemingly illegal copies of sewing/knitting patterns and even scanned copies of whole books on there. But that’s another matter for another day…
You CAN sell things that you make from sewing patterns, with only minor limitations (see later). A pattern is simply that – a template to follow to create a uniform item. You add your own artistic flare to what you create using that template. What you make is your property and is yours to do with as you will.
Will this happen if you sell what you sew? Absolutely not.
In legal-ese. Patterns for clothing and other useful items generally are not copyrightable. See Supreme Court – Baker v Selden, 101 U.S. 99, (1878). Even if patterns were copyrightable, the product made from the pattern would not be covered by the copyright. see Baker v Selden, (1878). Copyright owners only have the rights defined under copyright law and cannot make statements that restrict the subsequent use of their product once they have sold it. see Supreme Court – Bobbs-Merrill Co. v. Straus, 210 U.S. 339, (1908)
As you can see, these Supreme Court rulings established certain factors over 100 years ago, and those have not changed since that time.
You might enjoy this interesting TED Talk about copyright in the fashion industry that explains how utilitarian items cannot be subject to copyright.
So if I saw a cat-walk dress I loved, I could create a pattern for how to make a similar item and you could all sew up similar dresses, no problem. That’s how the high-street stores are able to create copies of designer clothing.
2 – If you buy an ‘indie’ pattern and then find right at the end it says for personal use only, or not for commercial use etc, then you aren’t allowed to sell any items you make using that pattern.
Not true. These terms are trying to impose a contract between the pattern seller and the buyer. But for a contract to be legally binding, both parties have to be fully aware of all of the terms of that contract and both expressly agree to them before entering into that contract – at the point of the purchase of the pattern.
In legal-ese. Unless the purchaser agrees to the restriction before the sale. the limitations on the product do not apply. (Bobbs-Merrill Co. v. Straus) The non-commercial limitation is not legally binding upon the purchaser because the manufacturer lacks the legal standing to make such demands.
3 – What about the designers who want to charge you for a ‘licence’ to sell what you made from their pattern?
Angel licences, sometimes called cottage licences, are agreements between two parties. If you purchase the pattern without first agreeing to limitations the same applies as in #2. These licences are attempts by designers to get around copyright law. Don’t fall for it and pay out money for a licence you don’t need and isn’t worth anything.
If a pattern designer expresses their wish that you do not sell items created from the pattern, then you may decide to simply use another pattern, there are lots out there. Don’t waste your time and money on pattern designers who are overly-restrictive or unco-operative.
4 – You can’t sell items made with ‘licensed’ fabric, such as Dr Who fabric. That’s illegal and the BBC will come after you for making forgeries, illegal copies of their products or going outside of the licence agreement for the fabric.
Not necessarily true. Licensed fabric means the design was licensed by the rights owner to be manufactured. The licence is between those two parties, not between the manufacturer and the fabric buyer. There is no license on the use of the fabric as long as the user insures that when selling the items it is very clear to any potential purchaser that the product is not an official licensed product but rather made from licensed fabric. We suggest users include a Disclaimer when advertising anything made in this way.
Read more about the use of licensed fabrics here. Are there ‘restrictions’ printed in the selvege edge of your fabric? These restrictions aren’t legally binding on the fabric purchaser – read more about that here.
5 – What about those designers who insist you ‘credit’ them by adding a notice to your sales pages and a tag to the item saying it was made with their pattern?
Depends where you live. American copyright law does not require the original author be given credit as you describe. European copyright law does require attribution but Congress declined to add that to American copyright law. Their demands for credit are not legally enforceable.
6 – You must purchase a pattern for EVERY item you make.
Not true. Patterns are reusable and there is nothing in the law that allows any pattern designer/manufacturer to set such a limit on the number of items that can be produced from the pattern, even if they are items of clothing intended for different people. Imagine if you had two daughters and wanted to make them matching dresses – why would you need to buy two patterns? The same applies even if you are sewing items to sell.