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montysimmons
montysimmons, Patent Prosecutor
Category: Intellectual Property Law
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Experience:  Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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I was sent photoshop pattern template files to create textures

Resolved Question:

I was sent photoshop pattern template files to create textures for baby clothes and upload and package the textures into clothing to sell on second life. The creator of the template patterns now say I can no longer use these the files. I did not ask for the files they were sent to me via skype by her. They are used as patterns that i must add fabric textures and trims to. I am finding it confusing because I have found this information referring to patterns and need to know if it is the same when creating product for a virtual world. Let us begin by repeating the lies most often told by pattern designers and pattern manufacturers. One fact that escapes most pattern users is that patterns generally are not registered with the US Copyright Office. This means two things to a pattern purchaser. First, that the pattern manufacturer cannot make a copyright infringement claim in federal court if it has not attempted to get a copyright registration. And second, patterns are not generally copyrightable so any claims made by the pattern manufacturer about the purchaser having to follow any restrictions imposed by the pattern manufacturer are not legally enforceable.

Keep in mind that the end product of the pattern does not matter. A pattern is a pattern. Whether the pattern is for clothing, quilting, embroidery or making a birdhouse, it is a pattern. And if the pattern were to have copyright protection, that copyright protection does not cover any articles made from the pattern. This applies to free patterns, purchased patterns or patterns given to you as a gift.
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  montysimmons replied 1 year ago.

I will be happy to answer your questions.

I am working on your answer and will post same in about 30 minutes.
Customer: replied 1 year ago.

My net went down for a bit. I am wondering if you have an answer

Expert:  replied 1 year ago.

I apologize for the slow response. This issue took more time for the to consider than I first believed it would.

 

YOU STATE

 

Keep in mind that the end product of the pattern does not matter. A pattern is a pattern. Whether the pattern is for clothing, quilting, embroidery or making a birdhouse, it is a pattern. And if the pattern were to have copyright protection, that copyright protection does not cover any articles made from the pattern. This applies to free patterns, purchased patterns or patterns given to you as a gift.

 

RESPONSE

 

Your statement above is correct from a copyright point of view; to an extent.

With regard to quilts and similar items made from patterns, there are two copyright issues: (1) the design (e.g. finished quilt), and (2) the pattern documents. Both can be protected by copyright.

 

Quilt designs are protectable as artistic expression. See Boisson v. Banian, Ltd., 273 F.3d 262, 267 (2d Cir. 2001).

 

Patterns are protectable as artistic expression. See Thimbleberries, Inc. v. C & F Enterprises, Inc., 142 F. Supp. 2d 1132 (D. Minn. 2001)

 

 

What is a pattern?

 

 

Google : a model or design used as a guide in needlework and other crafts; a repeated decorative design. "a neat blue herringbone pattern", "the pattern on the wallpaper"

 

 

A pattern can be the description of a procedure, process or method of operation for making something.

 

For Your Facts

 

A pattern is: A set of “Photoshop pattern template files to create textures for baby clothes and upload and package the textures into clothing to sell on second life.”

 

PATTERNS IN GENERAL

 

Let us examine copyright law for patterns in general for the real world and then apply to your specific facts for a virtual world.

 

 

First, as noted below, a “pattern” can be protected by copyright. If a “pattern” includes the minimal level of creativity required for copyright protection to attach, the copyright in such a “pattern” can be registered with the copyright office. However, such protection ONLY covers the copyrightable portions of such “pattern”.

 

 

If the pattern is a method of doing something there can be no copyright. A “pattern” can be the DESCRIPTION of a procedure, process or method of operation for making something. Such DESCRIPTION could include text and illustrations. Copyright may attach to such DESCRIPTION (including the text and illustrations) but such protections do not extend to the actual “METHOD” described.

 

 

Restated, a copyright in the description of a method is not the same as a copyright in the method. Copyright protection does not extend to the method. Therefore, with regard to quilts (or similar items), anyone has the right to use and adapt a described quilting method itself, including using any procedures, processes, or methods described in a quilt pattern (for commercial or other purposes) . Restated, once one knows the method of doing something, one can use such method as much as one wishes and there will be no copyright infringement. Only a patent in such method could legally stop one from using a method.

 

Artistic Expression

 

If the pattern is a simple work, such as the outline of a bird, there is likely no copyright (unless the bird is shaped in a way to make it unique . . . unique eye shape, head shape, wing shape, body proportions, etc.). Restated, all birds generally look the same. One does not get a copyright monopoly on a generic bird shape. But if you make a unique bird (like Sesame Street’s Big Bird), there can be copyright protection. Same goes for patterns; if the pattern contains some minimal level of artistic expression, copyright protection is possible.

 

 

Notably, virtually every pattern design featuring depictions of fruit, animals or the conjoining of standard shapes like squares and triangles would likely be held to be at least partially comprised of elements in the public domain unless such design was sufficiently abstract.

 

 

Further, to the extent a “pattern” merges with the “idea”, however, the merger doctrine holds that copyright protection does not attach to such a pattern. In no event does copyright protection extend to an “idea”; only the artistic expression of an idea.

 

 

YOU STATE

 

I was sent photoshop pattern template files to create textures for baby clothes and upload and package the textures into clothing to sell on second life. The creator of the template patterns now say I can no longer use these the files. I did not ask for the files they were sent to me via skype by her. They are used as patterns that i must add fabric textures and trims to. I am finding it confusing because I have found this information referring to patterns and need to know if it is the same when creating product for a virtual world.

 

 

Let us begin by repeating the lies most often told by pattern designers and pattern manufacturers. One fact that escapes most pattern users is that patterns generally are not registered with the US Copyright Office. This means two things to a pattern purchaser. First, that the pattern manufacturer cannot make a copyright infringement claim in federal court if it has not attempted to get a copyright registration.

 

 

ANSWER

 

You are correct here that a copyright must be registered with the US Copyright Office before the copyright owner can file suit.

 

 

YOU STATE

 

And second, patterns are not generally copyrightable so any claims made by the pattern manufacturer about the purchaser having to follow any restrictions imposed by the pattern manufacturer are not legally enforceable.

 

 

ANSWER

 

It is true that certain concepts, designs, and plot lines are considered to be in the public domain, and thus, not copyrightable. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 548 (1985);

 

However, when in doubt as to what is protected by copyright, always fall back on the working of the statue.

 

Copyright ACT

 

§ 102 · Subject matter of copyright: In general28

 

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

 

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

 

 

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

 

 

§ 103 · Subject matter of copyright: Compilations and derivative works

 

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

 

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

 

 

ANALYSIS

 

I believe the virtual patterns would be protected by copyright under “pictorial, graphic” works.

 

I understand your question to be: Are “Photoshop pattern template files to create textures for baby clothes and upload and package the textures into clothing” copyrightable?

 

Restated, are “patterns/templates” used to generate virtual baby close in a virtual world called “Second Life” copyrightable?

 

I understand that such templates are used to create virtual clothes sold to fit a virtual baby such as Baby “Tatu’s Bad Girl Dress”.

 

 

As noted above for real world works, if such patterns contain the minimal level of artistic expression related to non-public domain material, such elements characterizing the artistic expression are copyrightable.

 

 

Do the same copyright principles apply to a virtual world and virtual market place?

 

 

Yes, such copyright principles would likely apply to a virtual world such as Second Life.

 

However, as in the real world, such copyright protection only extends to original works of authorship comprising the minimal level of artistic expression.

 

No part of the patterns that are in the public domain would be protected by copyright.

 

 

 

 

 

montysimmons, Patent Prosecutor
Satisfied Customers: 240
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
montysimmons and 4 other Intellectual Property Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for your reply


If i understand right anything that she might have actually hand drawn is hers. Because it hers she can at anytime revoke permission to use it even if it was a gift?


If i understand it right the actual T shirt shape of her files is pattern and not under copyright. If i understand it right anything she used that was an image that she didn't create such as a button, I could infact be infringing on not hers but the actual creator of the "button" if she stole that resource of the internet and did not pay for it or bought it under a license for own personal use not to be resold or given away on its own but must be part of a finished product.


This person is my former partner. My shop is older than hers and much larger. I have my own files. The issue is she now feels that anything I create she can cry "theft" She is breaking all kind of TOS and defaming me. I just want to make sure that I can if need be file a counter if she decides to do what she is threatening to do and file a DCMA. If I understand it right she will have to be able to prove that anyting she claims is the same that she actually did have some kind of creative artistic input into and that it wasnt just put together using "manufactured" details such as a button.

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montysimmons
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Electrical Engineer, South Carolina Attorney, Member of US Patent Bar