Fabric and Intellectual Property Issues Hit the Big Time

Today Boing Boing threw in its two cents about one of my favorite contentious issues, fabric and copyright (our prior discussion here), and it caused all sorts of turmoil. Here’s what happened:

1. Boing Boing takes issue with Heather Ross for releasing a fabric designated with “for personal sewing projects only. This print cannot be used for items made for resale.” I have to come down on Boing Boing’s side on this one, minus the scorn directed at the designer.

2. Boing Boing implies that Reprodepot deserves equal scorn apparently just for selling the fabric and merely notifying customers of the restrictions. Sheesh! (But see #4)

3. Reprodepot responds, and sends readers to Amy O’Neill’s blog The Hook and I. Amy’s post got a lot of comments. Do read all these from start to finish — both Heather Ross and Djerba of reprodepot.com respond to others’ comments point-by-point.

4. Well it turns out that Djerba of Reprodepot wasn’t “merely notifying customers of the restrictions,” but wrote them herself. She rescinded and said that she should have worded it as a request, not a legal threat. Heather Ross, in the meanwhile, wrote that she just does not want her name associated with things made of her fabric — she cites a particularly naughty item sold on eBay with her name in the title as an example of how her name can be, uh, cheapened. (Note: this is a *trademark* issue that is not unrelated to the fabric copyright issue, but separate enough)

5. It also turns out that restrictions like the ones lambasted in the Boing Boing post are almost certainly not backed up by copyright law. This is very interesting and is contrary to what I previously assumed (re: by buying the fabric you are entering into a sort of “user agreement.”)

6. An anonymous comment on The Hook and I sums it all up eloquently:

Under freedom to contract as I understand it, anyone can agree to anything that doesn’t contravene public policy.

You can contract on as many things as you can bet on.

The boingboing issue (which is a popular issue with them) is when people assert copyright law as a protection for things that copyright doesn’t reach.

If someone sells you something, say a house, with restrictions on what kind of mailbox you can put up, that’s usually an enforceable contract.

If someone sells fabric only to people who agree not to sell items created with it commercially, that’s also theoretically enforceable.

But I’d suggest a clause for stipulated damages and attorneys fees because otherwise it’s not enforceable as a matter of practicality.

Then you’re back to the issue of etiquette. You might very well frighten off legitimate customers with such draconian stipulations.

But that, too, is your right.

So, it appears that restrictions such the ones that used to accompany Amy Butler’s fabrics are likely not enforceable?

Apparently Heather Ross and Djerba have been through hell and back today, and that really blows. I would think that the people sending nasty emails aren’t fabric buyers in the first place and hope that the attention ends up benefiting both ladies. I love Heather’s designs and Reprodepot, I have never NOT bought fabric I liked because of restrictions that I happen to not agree with, but that’s just because I’ve never had the occasion to sell anything I made. The side effects of such restrictions, namely the ill will amongst fans/customers, seem worse to me than the possibility of brand-cheapening by products made without the fabric designer’s permission, but having never been a fabric designer, I doubt I am one to talk. I would LOVE to hear what FreeSpirit (the manufacturer of the current Heather Ross line) has to say about this, as well as Weeks Ringle and Heather Bailey, who also design fabrics for FreeSpirit. I will send them emails to see if they have anything to add to the debate.

Note: A version of this entry was originally posted on Dioramarama on October 17, 2006. See original entry for any reader comments.

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