The intense attention on copyrights these days makes it hard to believe that there was a time when articles were borrowed wholesale by competing newspapers or magazines without a second thought. Words and ideas have not always been considered property and, in fact, many early writers were considered conceited if they invented new and different story lines rather than closely following recognized masters. Thus, the first protective salvos fired were aimed not at those who plagiarized the work of others, but at those who reprinted works intact without consent or compensation.

The 18th century witnessed the beginning of respect for original thought and the idea and ideal of (but perhaps not the phrase) “intellectual property”—the respect and protection of the ideas themselves began to take root. A violation of copyright is a legal issue. While those who plagiarize may also violate copyright laws, plagiarism itself is a moral or ethical violation.

Looking back at the origins of copyrights in America, we find that the Constitution of the United States of America took steps to protect the writing and discoveries of creative citizens. The issue became a Federal concern when the separate states began to enact copyright laws that required registration and the burden on the citizens to travel from state to state to protect their work was recognized. The first Federal law concerning copyrights in America was passed in 1790. Literary, and eventually artistic, theft became a crime.

In researching the origins of copyrights, we discover that, until the Bill of Rights was inserted into the Constitution, the only “right” secured to Americans was found in Section 1, Article 8, Clause 8— “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” It was, indeed, our first right and it is an intrinsic part of the fabric of the embroidery industry and demands serious attention and respect.

Unfortunately, the interpretations of attorneys and judges over the years have made the path of copyrights a veritable labyrinth. Precedents, decisions, laws—all combine to make parts of the copyright story burdensome, other parts ludicrous. Even the closest readings and attention to detail can’t second guess the outcome of a legal confrontation.

Real issues, real people

The Embroidery Line, an Internet email forum for embroiderers and digitizers (www.EmbroideryLine.net), had a brisk discussion recently about designs being sold illegally on the Internet. Some members discovered artwork they or close friends or family created had been digitized and were being sold by a vendor claiming copyrights to the work. While it is true that the digitizer owns the copyrights to the version digitized for stitches, he/she must have the artist’s permission to create that file. You can’t lift artwork from anywhere, even the Internet, and expect to have an unassailable right to the embroidery digitized version of that work.

Some stock-design companies decide to bulk up their offerings by buying or consigning the work of others. One company changed hands in 2009 and digitizers, some of whom work from their own original artwork, discovered that designs identified by the very number they had originally assigned, were being sold by a new owner with no communication, review of contract and, sadly, no commission being paid.

The climate on the Internet is cautious, with many potential stock design buyers weighing the odds carefully as they question the authenticity not only of designs, but of the sites themselves. It certainly makes life harder for those who play by the rules.

The value of stock designs

There is no question that stock-design collections are a valuable resource to an embroidery service. Shops can offer options to customers that might not be possible if they had to rely on their own stash of completed designs. Even independent digitizers may not have what you need in their offerings and you would have to turn to a larger stock-design company. We need to know however,  that we are turning in positive, honest directions. The purchaser of the stock design needs to know that the designer/copyright owner will be paid fairly for their work. The digitizer who participates in the market needs to know they will be paid and given credit for their creative prowess. 

Neighboring issues

I have met many embroiderers who bought fabric for a custom appliqué only to find out that there was a copyright notation on the selvage. What to do? What are the rules? Call the company listed and ask. 

Patterns present similar dilemmas. A purse pattern I investigated had small print noting that only six could be made for commercial sale. Think about a seventh and you had to contact the designer. Who will keep track of the number of purses made? Will everyone be truthful? How is it policed? And, most importantly, why would a designer want the bookkeeping headaches that go with that kind of control?

This brings to mind another aspect of copyright legislation: Protecting the rights of the creators was just one of the intentions of the framers of the law. It was thought that those who steal from writers and artists discourage them from sharing their views; protection encourages them to continue to create. They are rewarded by limited monopolies—limited because at some point they are expected to become a part of the public domain. This restriction is to protect the public, preventing authors from limiting the circulation and allowing works to be referenced and quoted without fear of legal action. Also, publishers can be competitive on price.

Many corporations, sometimes with the cooperation of the creator, fight to extend “limited”—contrast the original 14-year protection to the current “author’s life plus 70 years.” The interest seems to be more in conserving profits than in enriching the public coffer of ideas. 

Originality is certainly to be admired and protected but, as many things go, things sometimes swing far into the other direction and the result can be the oppression of the free sharing of ideas. Copyright protection granted to authors has, as a condition, the idea that the public good will eventually be the recipient of the works.

Protecting your creations

Remember that unless and until the rights to a digitized design are transferred in writing, the copyright in a digitized design belongs to the person who creates it. This means that the digitizer owns it, even if you ordered it, unless the rights are transferred. If you are the digitizer you own it, not the customer.

The legal ownership of a creative work can be in the form of written text, program source code, graphic images, sculpture, music, choreograph, sound recording, motion picture, pantomime, and architecture. These categories are wide-ranging. Computer programs and most “compilations” may be registered as “literary works.” Maps and architectural plans may be registered as “pictorial, graphic and sculptural works.”

Prior to 1978, a work had to be published to be copyrighted. After Jan. 1 of that year, copyright is automatic for the life of the author plus 70 years when a work is created and “fixed” into a book, tape, or electronic medium for the first time. For works “made for hire,” such as a publication written by an employee of a company, the copyright lasts 120 years from date of creation or 95 years from date of publication, whichever is shorter.

It is not required to publish or register a work in any way to secure copyright. To enforce a copyright the work must be registered with the United States Copyright Office. In the U.S., a copyright symbol is not mandatory, but recommended. 

The confusion of copyrights has become an even greater tangle since the dawn of the age of computers and related technology. Where do designs that are written in software language fit into the picture? Are they deemed visual art creations because of the finished artistic quality of the design? Or are they categorized as a kind of text—in this case machine language? I recall a ruling where a store owner’s right to “rent” a CD of digitized designs was upheld against the creator’s protests because the designs had been incorrectly copyrighted. 

When even the framers of the law don’t comprehend or follow closely enough the morass of rulings, how is the creator of the design to know the most comprehensive, complete and foolproof manner in which to protect the intellectual property against all comers? Visual arts works include two-dimensional and three-dimensional works of fine, graphic and applied art, photographs, prints and art reproductions, maps, technical drawings and architectural works. Text that accompanies a visual arts work can also be registered on the same application. Perhaps the answer is to copyright the designs not only as visual arts (VA) but also as machine language (TEXT).

Matters of morale

Each designer needs to be comfortable with the decisions they make about protection—and some of this is based on the advice of an attorney versed in copyright law. We all know that different lawyers have different interpretations of the laws they read and the precedents they study. We also know that a judge’s ruling may be influenced by the rhetoric of the lawyer with whom he agrees. It’s like football—on any given day, any team can win.

In the end, a lot of what designers do is based on their ethical and moral fabric and whether they view the issues at hand in black and white exclusively or admit shades of gray into the mix. 

I have heard and read so many complaints over the years by embroiderers whose customers have circumvented their shirt profit by buying straight from a willing shirt vendor. Yet the embroiderers themselves will surf the ‘net searching for free or inexpensive designs rather than pay the price for a custom or stock design from a digitizer. Lots to think about. Hug yourself this month. And do the right thing.