- I'm designing a knitting pattern. Can I use a stitch pattern I've seen somewhere before?
The building blocks of stitch patterns -- knit, purl, cable, twist, increase, decrease, yarn over, and so forth-- are not protected by copyright. They're techniques. However, their combinations might be protected.
If the stitch pattern is in the public domain, then the answer is yes, you can use it. However, it is not so easy to determine whether a stitch pattern truly is in the public domain. 'Public domain' does not mean that the stitch pattern or other work has been published and is freely available. 'Public domain' means that any copyright in the work has since expired.
Where have you seen the stitch pattern? Is it a traditional stitch handed down from the knitting dawn of time [which suggests it is traditional], or is it someone's original creation? Is it in every stitch dictionary you've ever consulted, or have you only seen it in one place? The more common the stitch pattern is, the more likely it would be considered to be in the public domain.
This does not mean, by the way, that you can just slap your stitch dictionary on the scanner and publish a copy of the chart or photograph. Do your own work.
Even if you’ve determined that the stitch patterns you want to use are traditional, there might be more to consider. An arrangement of selected traditional stitches may also be protected by copyright, if the arrangement itself is original.
- While I was window shopping, I spotted a nifty number in a store window. Can I publish my own pattern that looks just like it?
To put the question another way, is there copyright in the store sweater? The answer is a resounding maybe.
We've already discussed the notion of a sweater as a copyrightable work of artistic craftsmanship. If we accept that this store sweater is such a thing, then yes, it's protected by copyright. And yes, publishing instructions telling other people how to replicate it may be a form of authorizing or counselling infringement.
By the way, copyright aside, there are other ways to protect a sweater design. It could be the subject of an industrial design, also known as a registered design or a design patent. Such registered designs can offer more definite protection than copyright, and there's no fair dealing or fair use defence. However, registered designs are more expensive to obtain than copyright, and of shorter duration. A sweater design could also be protected through unregistered design or trademark rights if the designer could prove she was known for or associated with a certain style of design.
Both of these alternative forms of protection are less common, but you should be aware that they exist and that they are being used to protect clothing designs. So, even if you don't think the sweater is protected by copyright -- well, you never know what other rights the designer may be able to assert.
But why are you following other people's trends, anyway? Shouldn't you be busy setting them yourself?
- I'm a fledgling designer. Can I take an existing pattern I like and rework it somehow?
Occasionally you hear [or read] people quote a 'ten percent rule' or something similar -- for example, if you change 10% of the garment, or if you change five, seven, or ten things about the garment, you've done enough to make the design your own. Those rules are not reliable. What sort of 'things' can you change? Colour? Yarn choice? Gauge? Do those changes necessitate any input on your part, besides some number crunching? Sometimes, you can't even find five things to change. Consider the sock or the tube top. Yet those patterns may be just as deserving of copyright protection as an Alice Starmore design.
An assessment of copyright infringement is not merely a question of quantity; it's a qualitative matter as well. There is no set definition of 'reworking;' there is no magic formula to calculate infringement. It's a subjective question: for you, for the potentially offended designer, for your lawyer, for a judge or a jury. In the end, the question of whether or not you've infringed someone else's rights in a pattern or garment can only be answered by setting out the patterns and the finished garments side by side and deciding whether or not, overall, your version is substantially similar to the original, and whether the elements you did take were protected by copyright according to the law in the relevant jurisdiction.
Perhaps an easier way out would be if you were to work from a pattern that you know is in the public domain. See the next question.