Art quilts and the law…piecing it together

(Note: The following consists of the writer's notes during the speaker's presentation, and should not be construed as legal advice….each case is different. For specific questions and/or guidance, check with a legal professional.)

Seattle attorney Nancy Stephens emphatically makes a point at her August 8 presentation to CQA members about copyright issues related to art quilts.

At CQA's August 8 meeting, Seattle attorney Nancy Stephens, who leads the trademark and copyright practice at Foster Pepper LLC, provided a fascinating overview of how these areas of the law may be applied to the realm of art quilting.

"Intellectual property comprises four areas—patents, trademarks, trade secrets and copyright," said Stephens, adding that while there's a body of law for most of these fields, the area of art quilts is different. "The law is firmly set on patents and trademarks," she said, adding "there's not much on trade secrets, and when it comes to copyright in relation to art quilts, it gets vague and muddy."  Copyright covers the rights in the expression of an idea. Searching for cases involving any type of quilting that have been adjudicated, Stephens found only four or five that touched on our concerns.

Stephens pointed out that the basis of copyright is that "it protects original works of authorship that are fixed in tangible form of expression." This includes works that are literary, musical, dramatic, pantomime, motion picture, sound recordings, architectural, and—where we artists come in—pictorial, graphic and sculptural. "Works of a utilitarian function (clothing, blankets) are excluded from copyright—but if you can extract some artistic design element, you can copyright it," said Stephens.

So who determines what is "original work"? "Ultimately, a court of law," said Stephens. "You would need to prove how you came up with the design. When it comes to art quilts, you can't copyright the idea or concept, the method or technique, or a pattern, but you can copyright the design-- your particular arrangement and placement."

 

A drawing made for Stephens by a friend, representing copyright as "a sword and a shield."

Copyright gives the owner the right to copy a work, distribute copies, and creative derivative works. Stephens pointed out that "If you make a derivative work of someone else's copyright work, and want to apply for copyright for it, you need permission from the original copyright holder and also need to show what you added to the original." She noted that anything created before 1923 is considered in the "public domain" and may be used freely.

Asked how the "fair use" rules might apply in this case, Stephens said "There's no 10% or 20% rule!" She advises clients not to rely on Fair Use, although there are some exceptions to copyright rules in that regard:  the court would consider the purpose and character of the use, the nature of the copyright work, the amount and substantiality of the portion taken, and effect of the use on the potential market of the original.

So how should we go about getting copyright protection for our original work—and why should we? "You own the copyright for your work simply by creating it," said Stephens," but to protect it, you need to file Form VA, which can be found online at www.copyright.gov, to register the copyright." Because copyright is a federal program, any infringement suit would be fought in federal court.  As to why file for copyright, Stephens pointed out that filing creates a public record, and you can't claim damages for anything that occurred before you filed the copyright certificate. With the advent of the internet, infringement is becoming an everyday occurrence, and "willful infringement" of properly registered copyright material can be quite costly to the infringer.

The photo at the left was made into a sculpture, right. The sculptor claimed it was a parody (an exception to copyright), but the court held it was an infringement.

One of the key considerations in any suit for copyright infringement is if there is a pattern of copying. Referring to a particular case, Stephens showed pictures from two different catalogs of sweaters. The second or "infringing" catalog displayed two sweaters that were substantially the same design as two that were pictured in the first catalog; the court decided that infringement had occurred. In another case a major retailer directly copied, for some T-shirts, some dog illustrations that a small company had online. In a "David vs. Goliath" situation, a crowd-funding effort is underway to help the copyright owner mount a suit against the retailer.

 

A major retailer created T-shirts (upper right) using artwork of dogs created by a small company. A crowd-funding effort is underway to aid the small company in mounting a suit for infringement.

So what can be used for art quilts? Stephens listed the following:
--Public domain material (pre-1923)
--Commercial printed fabric unless possibly when the fabric is subject to copyright protection
--Stamps, stencils, images from magazines…"So long as you 'make it your own,'" cautioned Stephens. "Transformative is a key word. If you are in doubt, seek permission from an earlier rights holder, and keep a paper trail of your efforts," she added.
--You can be "inspired" by the works of others, but it can't be a copy. Your work must be "transformative."

 

A lower court held there was no copyright for "letters" (left-hand quilt) when its creator filed a suit for infringement by the makers of the quilt at right, but an appeals court ruled that the copy was too similar as a whole.

CF Enterprises (right photo) was enjoined from using Thimbleberries' registered design/pattern, left.

Audience members asked Stephens about a locally inspired, prize-winning art quilt that has been widely seen at shows and in publications in recent months: "Chihuly's Gondola," which was based on one of the displays in the Chihuly glass garden at Seattle Center. Noting that Chihuly apparently has made no complaint ("and he would have several more years to do so"), Stephens pointed out the possible reasons that there would be no case of infringement here:
--The quilt artist gave Chihuly total credit for the inspiration
--She made only one piece
--She took her own photo of the display, and worked from and modified that photo
--She changed the medium, i.e.to fabrics
--She changed some of the colors

Wrapping up her presentation, Stephens gave us the following tips on how to deal with our own work in relation to potential copyright issues:
1. Be creative (remember "transformative"!)
2. When borrowing, don't highlight the part that makes it special
3. Create a "story" for your work…How/why you came to create it…or "I'm making a commentary on XYZ"
4. Give credit where it's due
5. Use the term "artwork" instead of "quilt," as the latter is so wrapped in history with utilitarian objects
6. Use the © symbol with your work: © First Name Last Name Date
7. Don't mass-produce!