Question on fabric copyrights.

I've received some questions and thought I would take some time to answer them in a series of short blog entries.

Lara asked a question on fabric copyrights.

I wonder if you can help!?  I came across your blog and a similar thing happened to me - I make bags and was sold fabric for the bags that infringe on a large company's design rights.  I have now found some different fabric and am wondering how I can double check that it is not copyrighted to anyone - do you know how I can check this?

In the US, fabric that is sold is subject to the First Sale Doctrine, meaning you can use it as you choose. The exception to this is if the image contains licensed images or trademarks. An example of this would be a team logo or recognized cartoon character. Though even the use of fabric with licensed images is up for debate.* This right is currently being challenged as we speak at the US Supreme Court, which if the judges rule a certain way threatens this right. It would probably upend business as we know it.

Anyway, the current trend among textile surface designers is to license their designs to fabric converters (such as Michael Miller, as an example) while retaining all their copyrights. They seem to be ok with personal, home use of the fabric printed with their designs, but they don't like their designs being used on commercially made products without their permission. The idea is certainly in conflict with the First Sale Doctrine.

There have been instances of copyright and trademark infringement on fabric in the US. In those cases, the design on the fabric was copied and printed outside the distribution and control of the original designer and/or fabric manufacturer.

I think the situation presented in this question is a bit complex and I don't know enough of the details to offer much help. I think Lara may be from the UK? In which case there are different issues at play. The UK and European Union have seized on the idea of design rights and patents. In that case, a fabric print in combination with a specific product can be protected. I don't know how you can check on the copyright status or design rights of a particular print. You would probably have to rely on the integrity of the fabric supplier. In any event I think it would be difficult to ever know for sure if something was ok to use.

In the US, the answer is similar. Fabric prints have traditionally not been registered with the US copyright office. Designs, as in completed items like a dress, are not protected. So, you must rely on the integrity of the fabric supplier to supply fabric that is available for the use you intend. Intellectual property lawyers may be able to help, but I don't how many are versed on the complexities of the textile and fashion industries. Unfortunately, if the above trends continue (and if certain legislation is passed) the need for an IP lawyer will become a requirement for designers.

*If you can look past the hyperbole of the Tabberone site, they do make some interesting points.

More on copyrights - this time on fabric

I've wanted to write a blog entry on the latest state of copyright and intellectual property issues in the fashion and sewn products business for a while. I've been watching the assertions of copyright restrictions by indie pattern designers (sewing and knitting) and the appearance of copyright restriction on fabric selvages. I've struggled with how to approach the topic because it can become quite heated very quickly.

As a fashion designer, I like to use printed cotton fabrics in my girls dresses. Over the last several years, I've been watching the rise and popularity of certain fabric print lines and their designers. I've loved the prints they are producing because they have hit upon a formula which is constantly fresh and inspiring. Long gone are the sweet floral rose buds that were so typical for infant clothing. Now there is an explosion of modern, colorful designs that are mixed and matched like crazy.

In the fashion industry there is an assumption that fabric available for sale can be used to make commercially sold products*. We don't usually take the time to ask for permission from every vendor and copyright holder before we design a season. To do so would bog down the process considerably. And let's not forget the concept of the first sale doctrine, which in the United States says the creator of an object loses control of it once the item has been sold**. Even so, I went so far as to ask permission on one fabric design a few years ago because it was designed by a well known scrapbook paper designer. This designer was known to go after individuals who used her scrapbook products to make new products to sell. But when I asked the fabric vendor, they thought I was crazy - of course I could use the fabric for a commercial product.

Well it appears with the rise of celebrity fabric designers***, that is changing. I've been reading of the recent case involving Kate Spain and C&T Publishing/Emily Cier. I won't rehash the whole thing but you can read a good analysis at The Free Motion Quilting Project. With the resulting chaos and ill will that is now floating around the quilting industry, you can see how quickly creativity can be curtailed.

This one situation throws chaos into more than just quilts. There are many childrens clothing designers, accessory makers, and manufacturers who use fabrics from celebrity fabric designers. What's to be done there? I can assure you that the fashion industry as a whole will not stand for it. There is a cost associated with printing up fabric, but it is not as hard to come up with our own designs and print our own fabric as it has been in the past. Those fabric designers need to be careful that they don't alienate the very customers they seek to serve by limiting what can done with the fabric they create. They may loose the very income they seek to protect.




*Generally speaking, it is suggested that a fashion designer not use a fabric print that contains a licensed character such as Mickey Mouse. Doing so crosses into trademark territory and Disney will come after you. There are some designs which are so distinctive that there can be no doubt that the design refers to another brand. So while the first sale doctrine may apply, why would you want to go there? In addition, it is copyright infringement to copy an existing fabric design and print it yourself. Though that gets into murky water because there are many, many fabric designs which are technically in the public domain, though which is and is not public domain is difficult to determine.

**Those statements printed on fabric selvages that limit usage to personal use are probably not legally binding due to the first sale doctrine. Though I'm certain some individuals may actually try to enforce it with lawsuits and threats anyway. If you see it and you have a concern, then just don't buy it. And as mentioned above, some companies will actually come after you.

***Please don't think that the usage of the terms celebrity fabric designers is disparaging. On the contrary, these fabric designers deserve the recognition that comes with their talent. The term celebrity simply refers to their popularity and the expansion of their brand across multiple product lines. Just as there are celebrity chefs, actors, and what not, there can be celebrity fabric designers.

Understanding basic block patterns : a few definitions

Shari asked me some questions about basic block patterns.

So pleased I stumbled on you blog - wonderful work by the way!  I am keen to start designing kiddies clothing and I am trying to find block patterns and relevant information on using/adapting them, that is not too confusing.

I have got some info on-line and books out of the library but have not 
found anything that I am happy with.  I am wondering if you could give me any pointers on where to start looking and/or even purchasing basic block templates.

The first thing to do is to define the term block pattern. A block pattern is a finished pattern with all seam allowances, notches, notation, etc. The pattern has been tested and approved for fit. It has been used, perhaps, in a style that has proven to be acceptable with customers.

Developing a basic block pattern

A basic block pattern is a pattern from which all other styles are based. Sometimes they are derived from the original drafts created from body measurements with instructions from a pattern making manual. Sometimes not. A basic block pattern can also be the patterns from an approved style as described above.

Just as an example, we can look at my recent blouse making venture. After a bit of testing, the pattern pieces for that blouse have become my basic block patterns for future blouse styles. I cut them out of tag board so I can trace them off, either on fabric for cutting or on paper for drafting a new style. The pieces have seam allowances and notes to help for future construction.

Pattern makers in the industry do not draft from zero every season. We trace off existing pattern pieces (blocks) and modify them. Over time we create a library of pattern pieces that can be mixed and match for a variety of styles.

How to acquire basic block patterns

There is no easy way to acquire basic block patterns. These types of patterns are considered proprietary to the business that developed them so they are rarely for sell. That leaves new designers with a few options and none of them are easy. And perhaps, that is how it should be. I know that sounds harsh, but your patterns will be better if you struggle through the development process yourself. You will come to understand how things should fit and be sewn and know how your patterns work.

So what are the options?

1. Draft your own patterns from body measurements using a pattern making manual. This is the most time consuming option, but ultimately the only way to ensure the fit you want.

2. Hire a pattern maker to do it for you. Probably the most expensive option. You will need to be prepared with a basic style, body measurements, etc. Expect a bit of back and forth as you refine fit.

3. Adapting commercial sewing patterns*. You can buy a commercial sewing pattern for a similar style but it will require a bit of fixing - actually a lot. Commercial patterns are usually sloppy and are not production ready by any stretch. One exception are Burda patterns which do not have seam allowances, so they will be easier to fix and adapt. Burda has even released their patterns as "open source", which is actually a misnomer. In other words, Burda has released their patterns with the license to use the pattern as you wish. And lest you think that I am encouraging the violation of the copyrights of commercial patterns, please know that the copyright status of patterns are in a legal quandry. In other words, in the U.S. no one can stop you from using the patterns you purchase as you wish, even though many believe they can. The only way to avoid that mess and confusion is to draft your own patterns from scratch.

4. Buy block patterns from someone else. I've never seen any production ready patterns available for sale. That doesn't mean it will never happen. I've even considered selling mine, but I haven't done it yet.
BTW, my blouse patterns were adapted from some Burda patterns and it worked well for the most part. The collar pattern pieces required a lot of work and I still don't have them right, IMO.

*If you buy a commercial pattern to take to a professional pattern maker to fix, you will probably be turned down. Commercial patterns require a lot of work to fix and it is honestly easier to draft a pattern from scratch. Some may turn you down for ethical reasons. Others may turn you down because you may give the impression that you are not ready or prepared to be a professional. I probably would turn you down too. The only way I would use a commercial pattern from a client is as a reference to match fit and styling while using my own block patterns or drafting from scratch.

More aggressive intellectual property enforcement by Taggies and Gerber

Taggies

My most popular blog entries have to do with taggies. Taggies are those square blankets with ribbon loops around all edges. I have received a lot of comments asking what the latest is on the patent and enforcement. I can only repeat what other commenters have stated:

1. The Taggies people are continuing to enforce their patent.
2. The patent enforcement lawyers appear to be going after anyone who has any form of a ribbon loop on a blanket edge, whether it is one ribbon loop or several.
3. No one has taken up the task of challenging the patent.

If Etsy or Ebay receive notice from Taggie's lawyers that the product is a potential infringement, those companies will pull your listing. These companies have little resources to investigate the claims, so legitimate or not the listing will be pulled down. You will not be able to defend yourself. If you list an item in your own store or blog for sale, you will receive a letter directly.

To date, it would appear there is plenty of evidence that the patent can be challenged. Commenters claim they had these style of blankets as children or that they have bought a current home sewing pattern with this style. Patterns and instructions abound on the net as do product listings in various online stores. The Taggies people were the first to obtain a patent and therefore believe they own it despite the evidence that the idea has been around for decades. This only illustrates the problem with the current patent protection system. The system is just complex enough that ordinary people have no idea what patents are being sought and if they should be challenged. The patent bureaucrats and lawyers don't understand the manufacturing processes and how common a folded ribbon loop in a seam is. Who has the time and money to fix the problem? Taggies is expanding into Europe and South America, so despite calls for a boycott the company appears to be growing.

Gerber and the word Onesie

Another aggressive brand enforcement problem has to do with the word onesie. Onesie is a registered trademark brand owned by Gerber. You cannot use that particular word to describe an infant bodysuit or unitard unless it is an actual Gerber branded Onesie. Various acquaintances of mine and online shop owners are receiving threatening letters about their use of this word in their product descriptions. Gerber appears to be ramping up their enforcement of their trademark.

These companies have not technically done anything illegal. They have the right to apply for patent and trademark protection. That protection is only worth as much as they are willing to enforce it. So, IMO, let them waste spend their money on it. The one thing these companies are doing is creating ill will among potential customers and retailers. Customers and retailers have long memories and will think twice about buying or indirectly promoting those products to friends. They may be doing more damage than they know.

Baby and children's apparel products seem to have more patent and trademark protection than other sewn product categories. There are bibs, hand covers, sensory objects, diapers, and so much more that have patent protection. I haven't quite figured out why.

Deciding on whether to file a patent on a new child's product design or not

2019 Note - The amazon affiliate link to the nursing cover above is from a different manufacturer then the one described below. I do not know the current status of the Bebe Aulait patent or protection efforts. Regardless there are dozens of similar ideas on Amazon and other places.

I don't know why, but some baby clothing and accessory designers are under the impression they need to go to extremes to protect their product. This includes patent, trademark, and copyright protection. Maybe it is the inner paranoia of being copied. I don't know. It seems that there are A LOT of baby/child related products that have been patented. Why? Some products are truly patent worthy but most are not. Regardless, patents are only worth as much as the effort used to protect the patent. In other words, it may cost you more to protect your patent than the money you make off it. That isn't true for all products, but for many. For many design entrepreneurs it will be a waste of time and money. There are few processes or ideas that are unique in this industry. Most designs are just reinterpretations or a new combination of existing ideas.

There are three types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

In addition:

Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable

I don't know under which of the three types of patents that Bebe Aulait has filed their patent for their Nursing Cover and I am not sure their claim is truly new or novel. (Bebe Aulait purchased the invention from the inventors and have become the new patent asignees). The idea has been around for a long time (one friend claimed she used one 20+ years ago). I think their claim as an invention centers around the addition of boning (stiffener) in the neckline of the apron that helps hold the apron away from the body. One interesting part of the patent is end caps on the boning. I haven't seen end caps for boning before and I could get behind that one small aspect of the patent. Have any of you seen endcaps for boning before?

In any event, there are some problems with the patent and I think it could be challenged. But who has the time and money. The nursing cover is a glorified apron.

Rumor on the street is that Bebe Aulait is enforcing their patent pending product in the same vein as Taggies, which I have blogged about before. It calls into question the value of their patent since it is so easy to copy. Not that I am encouraging copying. If you do, you will receive a threatening "cease and desist" letter from a lawyer.

I don't know what it takes to challenge a patent. I am sure at some point an IP lawyer will have to be employed and they are very expensive.

Trademarks are issued to brand names. Like patents, it creates a property right over a brand name. I will write about a trademark problem with onesies (owned by Gerber) at a later date. The next problem is copyrights. Taggies claims copyright protection on their products. Such a claim is not valid because there is currently no copyright protection on clothing or textile items. Copyright protection can apply to textile designs such as fabric prints. A measure has been in the works to extend copyright to apparel but is apparently stuck in committee. Such an extension of copyright would have a devastating affect on the apparel industry in the US.

What do you think?

Thanks to MyPreciousKid and Trinlayk for bringing this to my attention.

Warning - Taggies Blankets have a patent

You probably have seen them. These blankets are made of two squares of fabric with ribbon loops sandwiched around the edge. I have seen them sold on Ebay, online web sites and demonstrated in blogs and mommy discussion groups. Some well intentioned new designer could find themselves in a heap of trouble if they attempt to sell a similar product.

This is the kind of patent I dislike. The product is so simple. There is nothing unique to the concept other than the brand name. It is easy to copy and reproduce. It would be easy to unintentionally copy the concept. Just attach a ribbon loop to a product, and oops - patent infringement. (This particular patent extends to related products and not just the blankets, and would, of course, have to be tested in a court of law).

This is how the designer intends to treat potential customers and fellow designers. The designer states:

In our appreciation of your notification of any product infringements that you may find, a donation of TAGGIES will be made to a charity. In addition, your first name and state of origin only will appear on our Random Acts of Kindness page as sincere recognition of your efforts.

I think there are better ways to protect your product. Try superior product quality, customer service, shopping experience. Sure, others will copy and imitate, but you can do better in all of those areas. Build loyalty on trust - not threatened action.

Patent protection is only as valuable as the intended enforcement of the patent owner. This designer is actively protecting her patent and products. (They claim copyright protection too, although that claim is rather dubious IMO). Anyway, just a warning to any other designers - stay away from the "Taggies" concept.

[This blog entry has been edited to remove some of my stronger opinions on this subject. If you would like to share your opinion, please leave it in comments.]

Stewart Girl's Dress Patent of 1922

From the USPTO comes a patent filing for a girl's dress in 1922. The claim made by Gladys Matson Stewart is for the ornamental design of the dress, which I found rather difficult to see. Perhaps the ribbon belt? I guess the claim depends on the definition of ornamental design and I find her claim rather dubious. Perhaps if she filed the claim on the basis of how the dress is constructed, then perhaps her claim may be more legitimate. The design of the dress is structural and also very intriguing. I would like to sit down with designer and see how she constructed it. The gather details on the upper skirt sides would be especially difficult to sew in an industrial setting. I have tried in the past to come up with an easy way to do it, but haven't yet. The pattern itself is rather easy to create, its the construction that is the challenge.

The difficulty would be in getting the gathers to start right at the end of the slit and have them evenly distributed across the length of it. The next difficulty is overcasting or serging the seam so there are no raw edges while avoiding unsightly tucks. There is a physical/space limitation in inserting the skirt piece under a gather foot on a sewing machine. The detail would almost certainly require some kind of hand manipulation and would be too expensive for modern manufacturing.

The gather detail on the skirt would not be very attractive on an adult woman unless done in a certain way. It would add weight and attention to an area that most women choose not to emphasize. But a girl's dress could certainly get away with it. As a design idea, the detail could show up in lots of different ways and locations on a piece of clothing. The only road block is coming up with an easy mass construction technique.

Who puts whom in a corner?

You have probably seen them. Those cute infant-toddler shirts with quotes, phrases, and images inspired by popular culture. You can buy those shirts everywhere from CafePress, on-line retailers, shopping malls, and even street corners. I am sure no one ever thought some of those phrases would be trademarked. If you follow the link, you will find that Lions Gate is going after people who print a quote from their movie on t-shirts. The defendants are producers of baby t-shirts and products.

The case will be difficult to prove. The phrase that can't be said has been "borrowed" by various companies since the movie came out 20 years ago. Lions Gate sells approved merchandise with the phrase that can't be said. But until now, they have failed to adequately defend their own trademark. After 20 years, is the trademark valid? I did a quick search for it at the USPTO and couldn't find it. Was it ever registered?

If Lions Gate wins this case, can you imagine other movie studios going after people for similar things? If you can't say the phrase that can't be said, how many other phrases can't be uttered? Maybe CafePress should be nervous - so many of their baby products are inspired by movie utterances.

Ethics aside, this case illustrates a danger to the freedom of speech. Who knew a common phrase could be trademarked? Should we be concerned when we use the word Apple or ask where the beef is?

Let's take another tack. The movie studios are benefiting from essentially free advertising. Think about all of those babies wearing shirts with the phrase that can't be said. Their parents will remember that movie and perhaps want to see it again through video purchases or rentals. Perhaps movie studios have a right to protect their intellectual property, but at what cost? Are they willing to risk losing free advertising and potential customers? Apparently they are.

Careful - This Bib is Patented

I have seen a few children's accessory designers make this bib. I can't say for sure if they have made it exactly, but there is enough similarities that caution should be advised. There are a few children's apparel/accessory products that have been patented. I don't generally like the idea of patenting these kinds of products because they are usually so simple. With a quick search I found over 200 patents on bibs and related items and some of them are extremely simple products. If you do register a patent, you also must be willing to defend it legally. This bib is patented by Nancy Sell with the bib being sold at Wal-Mart.

Other things to consider with patents. They take time and money to prepare. This bib was "invented" in 1993 and the patent filing wasn't completed until 1996. There are some interesting related inventions of a coat and an apron that had similar pockets.

This style of bib is called a "crumb catcher". It has a folded pocket on the bottom that is secured with strategically placed snaps. The bib is made of a vinyl type material on the face and a fuzzy fabric on the back.





Here is a close-up of the folding used to create the pocket.

I haven't decided if this was really worth going through the process of obtaining a patent. It is interesting enough that I traced it off for further study and that is when I noticed the label with patent info. If you do patent a design you must include the patent info on a label. Anyway, if you do make a "crumb catcher" bib, just make sure it doesn't violate this patent.