Sunday, July 20, 2008

Knockoff Knits

Because the audience here is mostly lawyers, I thought the views here might be interesting.

There is, as you might imagine, serious DRAMA in online knitting communities about people publishing patterns that are inspired by or based on other designs, particularly designs that some other person is trying to get people to pay for. I am not an expert in this area, but my understanding was roughly that:

  • You can't copyright a clothing design, although you can copyright the expression of a design. This is why knockoffs are legal.
  • Logos and "distinctive embellishments" are protected.
  • Many stitch patterns are in the public domain.
  • You can't assert copyright over a procedure, method, or process. This is why recipes are copyrightable insofar as the directions are concerned, but not "2 cups flour" part
So, legal readership: what do you think of patterns for the following (assume that in all cases the written instructions are not copied directly, although things like chart and abbreviations are in some instances, necessarily, identical):

  1. Someone reverse-engineers a sock based on a photo of Jane's design without ever seeing the pattern. The sock is constructed just like Jane's.
  2. Same as above, but the sock is constructed in an entirely different way or uses a different technique, making the directions substantially dissimilar. The end product looks just like Jane's sock.
  3. Someone studies a copy of Jane's pattern and figures out how to do the same things using a different technique or construction method. The end product looks just like Jane's.
  4. Someone takes Jane's sock pattern and changes the lace or cable on the top to a different type, but otherwise keeps everything the same.
  5. Someone takes the toe construction from Jane's sock pattern, the heel from Susan's, changes all the stitch counts to make it work with a thinner yarn, and adds in a public-domain cable pattern from a book compiled by Edith.
I think of patterns as being similar to recipes, especially since you often have to make substantial changes based on the particular yarn and needles you are using and sizing it to fit. This is why I will never publish patterns (I am currently musing on how to make a v-neck sweater with a Greek key motif--should the key strips go vertically over the sides of the bust, horizontally across just under the bust, or around the bottom and sleeve hems? I have been looking at other patterns for inspiration, but heaven help me if I actually succeeded and wrote up a pattern now, because "zomg copyright infringement!").
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