A Fair Use Exercise.

I have been watching the now-settled legal battle between Emily Cier / C&T and Kate Spain like a hawk. C&T is also my publisher, Emily could just as easily have been me. And still could be. For my book, I credited the designer and manufacturer when known and gained permission to use most of the fabrics, but, for various reasons, some fell through the cracks. So I’m nervous.

My thoughts are not all fully formed on all of this. Emotions and opinions are running high, understandably so. But at the root of it is a very interesting legal gray area. There are a lot of parallels between quilting with printed fabrics and musical sampling. If you watch the documentary Copyright Criminals, which is available streaming on Netflix, you’ll learn that the courts don’t tend to side with the samplers. But unlike music, a fundamental characteristic of fabric is that it’s meant to be used in other people’s creations. I don’t know if this changes things or not.

I haven’t seen much discussion of Fair Use in regard to fabric, quilts, and published photographs thereof. Fair Use allows people to use U.S. copyrighted works without gaining the explicit permission of the copyright holder. Determining fair use is done by measuring four factors, detailed clearly and succinctly here.

I want to open up the discussion here about the current situation, but I want to do it in a more objective kind of way. I found this very helpful tool, a .pdf Checklist for Conducting a Fair Use Analysis put out by Cornell University. It breaks down the Fair Use test in, I think, a very clear and simple way. So I thought it might be interesting and helpful for us to do an assignment together. Apply this list to one or more of the following (it shouldn’t take you but a few minutes for each situation):

- The use of Kate Spain’s Fandango fabric collection in Emily Cier’s quilt as photographed and used in her Scrap Republic book
- The use of Kate Spain’s Fandango fabric collection in Emily Cier’s quilt as photographed and used on a tote bag sold by C&T Publishing
- The use of any single fabric print used to make a quilt, as photographed and posted on a personal blog, Pinterest, etc.
- The use of any fabric collection used to make a quilt, as photographed and posted on a personal blog, Pinterest, etc.
- The use of any fabric print in my book A Field Guide to Fabric Design, which shows the print to teach about fabric design principles
- The use of any fabric collection in my book A Field Guide to Fabric Design, which shows the prints to teach about fabric design principles

In the comments, let me know if these situations pass or fail Fair Use, by what percentage, and what questions arise as you apply the checklist. I think you’ll see there is not a simple cut-and-dry way to apply each point in the list.

Oh, and here are the pertinent links if you need to play catch-up:

Emily Cier: An Interesting ReadMore Sides to the Story
Kate Spain: On Copyright and Tote Bags, Moving Forward
C&T: Statement by Todd Hensley, CEO

43 Comments

  1. Kelly says:

    I’d say ALL are fair use. The only one I have even a hint of doubt on is the tote bag. Fabric is a medium of design. It’s not a finished product in it’s original state. It’s supposed to be MADE into things. Just my thoughts… I think it’s sad that we would forget that. Yes, give credit to the designer whenever possible… but I don’t think fair use should even be in question. JMHO. :)

    • Kim says:

      Kelly, thank you for your comment! I’m wondering what you base your tote bag doubt on … where you draw the line.

      • M says:

        From my understanding the tote bag was produced with her design, which was not licensed, and not the printed fabric.

  2. KathyH says:

    1. The use of Kate Spain’s Fandango fabric collection in Emily Cier’s quilt as photographed and used in her Scrap Republic book

    This seems like fair use according to what I read in all the links.

    2. The use of Kate Spain’s Fandango fabric collection in Emily Cier’s quilt as photographed and used on a tote bag sold by C&T Publishing

    This seems like fair use except if the image on the tote looked more like fabric than a quilt it wouldn’t be.

    3. The use of any single fabric print used to make a quilt, as photographed and posted on a personal blog, Pinterest, etc.

    This is fair use.

    4. The use of any fabric collection used to make a quilt, as photographed and posted on a personal blog, Pinterest, etc.

    This is fair use.

    5. The use of any fabric print in my book A Field Guide to Fabric Design, which shows the print to teach about fabric design principles

    6. The use of any fabric collection in my book A Field Guide to Fabric Design, which shows the prints to teach about fabric design principles

    I don’t understand the last two. If they are just images in the book, then how could someone use them? If a person actually buys the fabric, they can use them for whatever they want. If you mean using the images in your book to teach about fabric design, isn’t that the point of the book? I guess I don’t really understand the last two.

    But I think fabric is like paint or clay. You might be an artist in how you design the media, but when someone buys the media, they own the rights to what they made. If I buy fabric, I own the dress or napkins or quilt I make and they are my art now.

    • Kim says:

      Hi Kathy! Thanks for doing the assignment! I see one of the points of contention being over how far a print designer’s copyright applies to their design *as applied to a surface* … particularly the surface of fabric. If I copied someone else’s design (regardless of the surface it was applied to) and used it as my blog header without their permission, that would absolutely be a copyright infringement. But if I took a photograph of the fabric that had the design applied to it, and used it as my blog header without the designer’s permission, is that infringement? Some would say absolutely yes, some would say no. I’m not so much interested in what people think the answer SHOULD be, but what the law says it is.

      • KathyH says:

        That I cannot answer. That is an interesting question, tho. That is hard because if you made something with the fabric, your photo of it is your copyrighted image. Your photo of a stack of fabric in your stash is your copyrighted image. But a photo of a closeup of the fabric, when it looks like the design images, that is a hard one. I don’t know the answer to that one.

  3. Nathalie says:

    I would say fair use to all the above, but there are aspects of fabric licensing which I don’t understand. Some are licensed with the proviso that they can only be used for personal, not commercial use. i.e. you can make clothes/ a quilt/ a tote/ etc. out of it, but you cannot use it for profit. Fair enough and this is marked quite clearlt on the fabric selvedge itself.

    But in the case of fabrics that don’t come with such a clause, what is the legal position? That you can use the fabric for whatever you want commercially, but you still can’t use an image of that fabric (even if it’s your own photograph of it)? So if a clothing company buys a designer’s fabric and uses it in their clothing range, they can’t show photos of the clothes without the express permission of the designer of the fabric first? That can’t be right, can it? Since there are no commercial restrictions, surely once you have bought that fabric, you have also by extension bought the licence to use that fabric whichever way you see fit, no?

    Anyway, since you credit all the designers in your book (at least wherever possible, which can be tricky when it comes to vintage designs), surely it would be bad faith to accuse you of anything untoward. And the way I see it, since your book is a teaching tool, you are valorising the designer’s work by presenting it as a specifically chosen, worthy example of fabric design.

    • Kim says:

      Hi Nathalie! I’m fairly sure that “for personal use only” as marked on the selvage is not binding or enforceable.

      As far as accreditation: it’s good practice, and keeps most copyright owners happy, but you can still be guilty of infringement even when you credit the copyright owner if you use the work without his/her permission.

  4. Sylvia Smith says:

    I don’t understand how fabric manufacturers of Civil War Reproduction fabrics can copyright these designs when they’ve been in the public domain for at least 150 years???

  5. Joy V says:

    To me they are all ‘fair use’. I would assume that fabric is designed and made to be used in whatever way the purchaser likes. Why else would you design and print fabric in the first place? If this is going to be an ongoing scenario then I will be very careful about what I purchase – definitely not something that had these restrictions on it.

    Does a painter or sculptor acknowledge the manufacturer of the oils or plaster they use in their works?

    • Kim says:

      Hi Joy, see my reply to KathyH above. In regard to your last thought: a work has to have a certain level of creativity and uniqueness for copyright to apply. Most print designs can be copyrighted — something like polka dots cannot. You can’t copyright a color, so a paint company can’t hold copyright on a color of paint.

      • HI Kim, I’m not sure this last is true. I believe Tiffany blue, Barbie pink and Cadbury purple are all copyright and don’t appear on paint company’s colour charts, etc. I know there was a copyright case in the last few years with regards to the use of purple that Cadbury thought infringed it’s copyright. Maybe trademark rather than copyright? Whatever the terminology it’s something that gives a company “ownership” of a particular colour.

        • Nathalie says:

          Paint companies can’t use the names but they can certainly sell the colours (we had a Dulux ‘not-Tiffany blue’ kitchen for years!). Where Cadbury had a case was with someone trying to sell chocolate using a similarly coloured wrapper – which led people to buy it thinking they were buying Cadbury’s when it fact they were buying that someone else’s chocolate. Christian Louboutin have been trying to do the same thing with their signature red soles, suing YSL for doing the same thing. As far as I know, the case is still ongoing and is on its nth appeal…

          • Thanks for the clarification, Nathalie. I obviously misunderstood the situation. I have posted about this on my blog today. Not the copyright issue, because I don’t know enough and people who have more at stake than me have written plenty. My comment more about the manners of the people involved and the blogosphere generally, in this dispute. Not beautifully written, just train of thought stuff. I have been very disheartened by the whole thing, but hope I can still see both (all?) sides…

        • Kim says:

          Nathalie is right, Katie. Colors can be part of trademark, meaning that a direct competitor cannot also use that color for similar products, logos, etc. I don’t think a paint company could *name* a color Tiffany blue, Barbie pink etc. but if they had a purple that just happened to be the same exact purple as Cadbury uses but they called it something else, they could not be touched. I could be wrong though. I do know that the limits of intellectual property can be stretched by whomever has the most money and power to back up their argument.

  6. Linda Sandusky says:

    It seems to me that we can’t really discuss what is fair use. Fair use means different things to different people. What I would like to see is a post that details what each designer considers to be fair use. At that point, I can decide which designers I want to support. Kate says that she wants to see items made of her designs in Etsy shops, but how many is the limit for her? Can I make 1 cosmetic bag or 20 before she is uncomfortable? I’m sure that Thomas loves to see Pear Tree being used to make various items….but what is his limit??? Can I make 10 tote bags or 100 tote bags. Each designer is going to see the issue differently. I use precuts exclusively (except for solids that I buy by the yard). Once I remove the ribbons, I sometimes can’t remember whose designs they are. I bought Honeycomb Harvest years ago and still have lots of it left. Can I use it freely or do I need permission even though it’s no longer in print? It seems that this issue has more questions than answers!

    • Kim says:

      Hi Linda, that is why I linked to the criteria and asked people to apply it to the current situation. I want people to be able to look at this situation as an impassionate judge might. A judge’s application of the Fair Use test is the only one that really matters.

      • Linda Sandusky says:

        hi kim…after looking at the criteria for fair use, it seems that they are all fair use (except maybe the tote bag because of the quantity of them sold)…it does still make me wonder what each of the designers believes to be fair use.

    • Kim says:

      And Linda, I totally agree … tons more questions than answers have been brought up by all this!

  7. Kari says:

    I’ve been wanting to speak out on this issue, but here is the first place I felt comfortable doing so. Thank you for bringing up this issue. I think they are all fair use. I would also argue that no fabric designer should agree to have their designs licensed for print on mass produced/mass market fabrics that feels uncomfortable with others using those fabrics to create new creative works with them. I think that consent is inherent to that type of product and even without explicit permission, others are free to create other things out of this. Fabric is not a finished product. It is clear that it is for transformative or productive use, which I think trumps all other consideration. It is inherent that fabric will remain recognizable as a particular design but the new object created with the fabric will belong to and become the intellectual property of the person who created that object. The creator of the new object should be able to sell that object, the instructions to make that object and/or use and sell images of that object. I find the situation akin to using royalty free photography or illustrations in graphic design, although in that circumstance the restrictions on usage are spelled out and agreed upon before purchase (for the benefit of everyone).

    Do you know what are the norms when it comes to very mass produced items? (for example, quilts from Pottery Barn, clothing at Target, etc.) I know that a while back Target was selling bags with fabric designs by Amy Butler without her permission. The more I think about it, if someone agrees to have their fabric printed en masse, then anyone at any scale can use as much fabric as they purchase to make whatever they want. I just can’t imagine they’d be willing to pay the price for fabric when they can have their own designs printed. Maybe that is why you don’t see recognizable lines at these companies?

    I’m feeling thankful not to be a lawyer or judge this morning!

  8. Kim says:

    Kari, thank you for your thoughtful comment! The issue of using designer fabrics in manufacturing is definitely a related issue. I don’t know if this happened with the Target bags with Amy Butler print you mentioned, but manufacturers often license prints (or buy them outright) from design studios to use for textile items. Sometimes the print in question might be a knockoff or direct copy of someone else’s copyrighted designs. The manufacturer can’t possibly know every print in the world, so sometimes it’s going to happen that they buy ripped-off designs. It may even be an in-house designer ripping off another designer. You’re right, due to cost, there is no way Target bought official Amy Butler fabric from Westminster! You would definitely see the Amy Butler brand name on the item if it was genuine.

    • The local Spotlight has knitting bags in poor quality rip off of Vera Bradley. I know because I own one of the “proper” bags. Maybe it was thought no one in Australia would notice as Vera Bradley is not such a thing here. Apparently the only VB we love is beer.

  9. Liza says:

    Dear Kim
    Thank you for using fabric from the Kaffe Fassett Collective in your book. We love it when our fabrics are used in books. It is nice if we get attribution but we dont expect it.
    We are thrilled when someone makes a quilt from one of our books and puts it into a show. If the quiltmaker uses the fabrics just as we did, that is fine. If she makes her own fabric choices, even better. Again, attribution is nice but not necessary.
    We are also pleased when our books are used as texts in patchwork classes. I think it is odd that there are some authors who do not want anyone else to teach their patterns.
    Liza

  10. Candy says:

    If fair use is conservatively applied, according to the matrix outlined in the Cornell University worksheet, the answer to each question, from my perspective:

    1. The use of Kate Spain’s Fandango fabric collection in Emily Cier’s quilt as photographed and used in her Scrap Republic book:
    a. It is for commercial use and entertainment
    b. While transformative, the original design is apparent and does not change the work to serve a new purpose. It remains a fabric design clearly visible and identifiable
    c. It is profit generating
    d. It is creative (art) work
    e. A large portion of the work is used
    f. The portion used is central to that specific part or “heart” of the work which was photographed
    g. Reasonably available licensing mechanism is available
    h. Will be publicly available with broad distribution
    Unless specific permission were given, there would be no fair use consideration.

    2. The use of Kate Spain’s Fandango fabric collection in Emily Cier’s quilt as photographed and used on a tote bag sold by C&T Publishing:
    a. It is for commercial use and entertainment
    b. While transformative, the original design is apparent and does not change the work to serve a new purpose. It remains a fabric design clearly visible and identifiable.
    c. It is profit generating
    d. It is creative (art) work
    e. Numerous copies were made and distributed
    f. Reasonably available licensing mechanism is available
    g. Will be publicly available with broad distribution potential
    Unless specific permission were given, there would be no fair use consideration

    3. The use of any single fabric print used to make a quilt, as photographed and posted on a personal blog, Pinterest, etc.
    a. It is used for comment
    b. It is non-profit use
    c. It is factual
    d. While transformative, the original design is apparent and does not change
    the work to serve a new purpose. It remains a fabric design clearly visible and identifiable
    e. It is creative (art)
    f. It is published
    g The portion used is not central to the entire work as a whole
    h There is no significant effect on the market or potential market for the material (except to increase it, in my humble opinion only)
    i. Questionable access to reasonably available licensing mechanism
    j. One time or spontaneous use
    k. Will be making it publicly available on the Web.
    This appears to meet criteria for consideration of fair use to be given, but strictly interpreted, it could be arguable.

    4. The use of any fabric collection used to make a quilt, as photographed and posted on a personal blog, Pinterest, etc.
    a. It is used for comment
    b. It is used for entertainment
    c. While transformative, the original design is apparent and does not change the work to serve a new purpose. It remains a fabric design clearly visible and identifiable
    d. It is factual
    e. It is published
    f. Large portion or entire work displayed
    g. Portion used is central or the “heart” of the work
    h. Questionable potential for impact on the market
    i. Questionable access to reasonably available licensing mechanism
    j. Will be made publicly available on the Web.
    Without specific written permission, there appears to be highly questionable consideration for fair use – err on the side of caution for no fair use

    5. The use of any fabric print in my book which shows the print to teach
    6. The use of any fabric collection in my book shown to teach
    a. It is commercial
    b. It is used to teach
    c. It is profit generating
    d. While transformative, the original design is apparent and does not change the work to serve a new purpose. It remains a fabric design clearly visible and identifiable
    e. It is factual
    f. It is published
    g. It is art
    h. It could be strictly interpreted as a workbook and therefore consumable
    i. It uses a small quantity, assuming only a single chapter is devoted to its use
    j. In the case of the fabric collection, it is used in its entirety
    k. The portion may or may not be central to the entire work as a whole, depending on its ratio of appearance to total content
    l. Amount is appropriate to educational purpose
    m. Questionable potential for impact on the market
    n. Numerous copies with broad distribution; excerpt may appear on Web
    o. Reasonably available licensing mechanism for obtaining permission to use
    Based on these criteria, there is no consideration for fair use for either situation, because publication, distribution, and profit-making mandate obtaining permission.

    While Fair Use is subject to interpretation, and a bright line of definition is difficult to establish, some semblance of boundary clearly needs to be determined.

    When reading court rulings related to this issue, I understand the use of a photograph, for example, could not be used to create a carving because the photographer COULD have chosen to create the carving himself, and therefore the carver was held liable for having used the photograph without permission as a basis for his carvings. Because it was a match, detail for detail, I can see this as exceeding fair use.

    However, this case alone leaves the question of fair use of fabric in a very vulnerable position. Certainly a fabric designer COULD have chosen to create a quilt with the designs, but chose instead to license them for commercial manufacture and distribution by a particular fabric company. Does that assignment of license then entitle the designer the right to determine end use of the fabric? Does it entitle the designer to a share of any income that might be generated from using that commercially available fabric in a transformed state, but one in which the design is still identifiable?

    Consideration also needs to be given to the definition of “transformative or productive use” as applied to the use of fabric. In the strictest interpretation, the fabric design remains clear and visible no matter how it is used, and leaves a very questionable line to argue viably either way. I sense a big opportunity here for a battle in which no one is the winner but the lawyer.

    • Kim says:

      Thank you for *really* doing the assignment, Candy! I’ve done the checklist in regard to my book and we differ on a few of the points, but I’m well aware I’m biased and want the test to come out in my favor. I have so many questions about what the individual points mean.

      And your last sentence really sums it all up.

  11. SallyT says:

    Unfortunately, for the purpose of gaining clarity about fair use of fabric, the example cited will not be seeing a court of law given the designer and her lawyers were bought off. And this may be resolved by economics, instead of a court of law.

    Who is going to want to buy fabric if they fear a lawsuit if they use it? I don’t want to have to worry about whether I might sell a quilt or enter a contest or have it end up in print (book, magazine or the web). I would think a fabric company would love their fabric to be used/shown successfully. I would be interested to know if Moda changes its licensing agreements or its designer lineup, because they ultimately may have the most to gain or lose financially from all this.

    Thanks for raising this issue…and give the earlier comment from Liza, I would go out and buy more Kaffe Fassett fabric if I only had another room…

  12. Kim says:

    Hi True Up-land,

    I received this email from a designer friend who wishes to remain anonymous. It’s valuable insight from someone who knows the fabric and licensing industries inside and out.

    Hi Kim!

    Such an interesting topic on your blog today- and I hesitate to respond in public, but wanted you to know that you have absolutely nothing to worry about regarding your book and the fabric shown in it. This is what fabric is for and what designers who create fabric collections should be well aware of as they enter this market. If this presents a problem for their other licensees, then they should think twice before they design raw goods whose sole purpose is the creation of other goods. It is a different animal and requires a thicker skin on usage. However, this dispute has absolutely nothing to do with the book usage, but the tote. Whatever the lawyers threatened and whether it included the book, it was their way of getting the attention of the publisher.

    I would do almost the same as Kate Spain in regards to a separate manufactured project that exclusively featured my design work. Especially if that design work appeared on a product category that I had a license for already which could form competition and quality comparison issues. In other words, any thing that involves confusion in the marketplace regarding my brand, and creates competition for my manufacturers, and therefore me.

    As tempting as it always is to “clear the air” if you see things getting described inappropriately, this is where I would have handled it differently. It simply does not belong in a publicly read blog, period. It will seldom help they way you hope for it too, and people tend to leave out the ugliest parts of it, so it’s hard to do the real story any justice. And the other thing I would have done differently (maybe Kate or her lawyers did this but it was never referred to) is simply to ask C&T (who is responsible for producing these tote bags, or book “add on” items- and not the author, in my opinion she has nothing to do with this) to offer Kate a royalty percentage on the sale of the goods. That is after all the style of earning a living that she is trying to protect and it seems that is what she is due in addition to an apology and a design credit on the tote bag. In other words the nature of this tote design deserved to be a joint venture, beginning by asking Kate for the permission to do so. Had the tote featured a photo of every quilt design in the book, then it would have really been a product that exemplified the written work, and the author’s creations and not one that relied solely Kate’s Design work for its appeal and therefore sale. A cease and desist is appropriate but it is such a ridiculous waste of time, dollars, labor and resources in the creation of these totes, and I hate thinking of that waste. Just move on and do it fairly.

    • KathyH says:

      I know this person is writing anonymously, but this answer seems to mean that anything made from any designer’s fabric that the designer herself also sells is subject to this kind of legal action. So, if Kate Spain sells bags, then no crafter can use her fabric to make and sell bags. This designer is saying that anyone who makes anything from fabric they legally purchase using their own funds is subject to legal action from said fabric designer. That is ridiculous.

  13. Ann says:

    Hi Kim,

    I have to disagree with the opening sentence of this blog post. I have always been impressed with the thoroughness of your knowledge and your professionalism. As you said, you credit designers where possible. You go above and beyond the call of duty to dot your i’s and cross your t’s. When in doubt, check it out! Especially since these days fabric manufacturers and designers are so accessible. I really don’t see something like this happening when you do your homework thoroughly.

    ~Ann

  14. Dawnmarie says:

    I think one of the primary factors that comes into this discussion with fabric is that fabric is designed to be transformed into a useable item. A bolt or yard of fabric doesn’t have any use except to be made into something. It is bought and sold with that intent in mind. In this way fabric differs from music, art, photography and novels. In a court case, a judge would have to take into account what was intended when the copyrighted item was created. In this case, the intent of the designer and the manufacturer was for this to be a raw material that would be used to make something else.

    As I looked at the checklist, I applied purpose to the new item created. I applied nature primarily to the fabric as the checklist says nature of the copyrighted material. For example – in every case the nature of the copyrighted item is that it’s creative and consumable because the copyrighted item is the fabric. By my interpretation, that limits the ability for fair use, which is kind of a contradiction since fabric is designed to be used. Amount copied applies to the new item created. Effect on the market applies to the fabric.

    Example 1: The use of Kate Spain’s Fandango fabric collection in Emily Cier’s quilt as photographed and used in her Scrap Republic book
    a. purpose of use – commercial use, for profit, whether it’s transformative is the question – while the design is still absolutely visible, you could argue it’s been transformed. A single piece of fabric is not a quilt or a bag. As fabric it’s designed and intended to be transformed. While some of us buy fabric just to pet, in actuality it was created to be transformed into something that can be used.
    b.nature – it is creative and consumable
    c. small portion of the work – it’s 1 of 2 versions of 1 of the quilts in the book. That makes it 1 of 16 and less than a chapter or 10% of the work. The book is the entire work in this case, not the single quilt.
    d. effect on market – does not substitute for buying the fabric. If anything, it encourages sales of the copyrighted work (fabric). Although many copies are made of the book, only 1 quilt was made with this fabric, and it would not negatively impact the designer’s ability to sell the fabric. Although licensing is available, the final item being distributed is not made of the copyrighted item. It’s a picture of a finished item made with the fabric, I think a good attorney could argue that licensing makes no sense here.
    Fair Use Judgment: Based on this, I’d say this was fair use and I think the right attorney could win this. Remember, the work in this case is a book, not the individual quilt, and there’s the big argument that the fabric is designed to be used, and that publishing a picture of how it was used did not in any way infringe on the designers ability to make a profit.

    Example 2: The use of Kate Spain’s Fandango fabric collection in Emily Cier’s quilt as photographed and used on a tote bag sold by C&T Publishing
    a.purpose – commercial, for promotion. Again, we’re back to the question of transformative – it’s a picture of a quilt made with that fabric. It’s not a reproduction of the fabric itself.
    b. nature – creative and consumable
    c.portion of the work – I haven’t seen the tote bag but it’s describe as a cropped picture of the finished quilt made with that fabric. If it’s more than 10% of the bag, then it’s probably an issue.
    d.effect on the market – I don’t see how this tote bag substitutes for buying fabric but that also depends on how the design was printed on the bag and how much was visible.
    Fair Use Judgment: This one seems questionable to me and since the publisher agreed they should have gotten a license contract first, we should call this one Not fair use.

    Examples 3 and 4: The use of any single fabric print used to make a quilt, as photographed and posted on a personal blog, Pinterest, etc.
    - The use of any fabric collection used to make a quilt, as photographed and posted on a personal blog, Pinterest, etc.
    I’m lumping these 2 together cuz I don’t see a big difference in the two.
    a. Purpose of use – personal, entertainment, not for profit
    b. Nature – creative, consumable
    c. Portion of the work – large portion or heart of the work
    d. Effect on the market – doesn’t substitute for buying the fabric. One time use, one copy made
    Fair Use judgment: Amazingly enough, I can’t check enough boxes on the fair use side here. I checked the same number on both sides of the equation. Logically, this should be fair use. I’d like to think that a judge would agree based on the fact that fabric is meant to be made into something and that I own the finished product. I’m not 100% sure.

    Examples 5 and 6: The use of any fabric print in my book A Field Guide to Fabric Design, which shows the print to teach about fabric design principles
    - The use of any fabric collection in my book A Field Guide to Fabric Design, which shows the prints to teach about fabric design principles
    a. purpose of the use – educational, for profit
    b. nature – creative, consumable
    c. portion of the work – I haven’t seen the book, but as long as it’s less than 10% or not central to the book and is an appropriate amount for education, then it passes this test.
    d. effect on the market – I don’t think the book substitutes for purchasing fabric, numerous copies are made, and if the fabric is current then licensing options are available.
    Fair Use Judgment – I think this one is more questionable than the quilt in the book because you aren’t showing a picture of a made product but of the raw fabric. It could be argued that you’re reproducing it. Since it’s used for educational purposes, I think you end up with a pass.

    This was an interesting exercise. I went into it with my own ideas of what fair use should be. I didn’t feel like the checklist held up all of my ideas. I think that goes back to the fact that the checklist is typically applied to things like music, books, art, intellectual property not raw materials used to make items. Fabric is just that, a raw material used to make another item. I’m not saying that all fabric is equal or that designers shouldn’t be able to own and protect their designs but it’s a fine line between copyrighting the design on the fabric and controlling a product made with a raw material.

    My personal opinion is that taking a picture of a quilt I made and putting it on my blog is not “reproducing” the fabric. I didn’t create a fabric with that design. I didn’t make a print of the design. I made an item using fabric. The fabric contributes to the design of the quilt, but the quilt is not the designer’s intellectual or creative property. The quilt is mine. Taking a picture of the quilt is not reproducing the fabric therefore it shouldn’t be a problem. I will say, that in the last 12 months I’ve been disappointed by different designers/authors/pattern makers and their attitudes about controlling what I do with an item I made using their fabric/pattern/book. I can understand the need to protect their copyright and I appreciated the clarifications that came out in the most recent situation. That said, these types of situations affect how all of us perceive the individuals involved. Sometimes that’s not a positive thing.

  15. Debbie says:

    Hi,

    I have been following the Cier/Spain dispute for quite a while, so I decided to create a page for everyone to comment and discuss, on facebook…

    https://www.facebook.com/#!/fabricuseandliabilitytosewers

    The title of the page is

    Quilters Concerned about Fabric Copyright Use and Liability

    I invite everyone to join, express thier concerns, get heated if you want, in a respectful way of course, and look at the links that are posted. There is one site I have posted that is so informative, you will spend hours if not days on there, reading what I think is a complete understanding of what we are obligated to do as sewers, writers, pattern designers, etc… One thing is the First Sale Doctrine, and there is more. Emily has been so sweet and pointed me to this blog, and I HAVE been having a very good discussion with Kate Spain on her Facebook page. I have written a couple things on my iPad and been autocorrected, which I despise, when I don’t catch it, so some of my comments should have an I or an it or something inserted….so, I never will be disrespectful, but I also am not backing down. I am tired of this, I have also been threatened, and I actually stopped one project, because I just could not fathom ever having to hire a lawyer over a quilt….. I have also sat through too many guild meetings where we want to do something, but then everyone gets scared to do it because they don’t want to be sued, etc…. This needs to be solved…..so, come join us, if you would like, and maybe the fog will clear for all of us.

  16. Kym says:

    I think the issue was the print used in the photograph on the totes was licensed – Kate Spain uses the print in stationery products. I would hope this restriction would not apply to all her fabrics being used for commercial use. Shame the other designer who commented was anonymous, as consumers this is important to know so we can avoid these lines in the first place.

  17. Tula says:

    With regards to those “personal use only” fabrics, I suspect that may fall under the First Sale Doctrine. Once you’ve purchased something, you have the right to resell it when and how you choose. Many manufacturers don’t like this and will still attempt to stop it. This happens quite frequently on eBay. Essentially, they don’t like to see their items selling for a price they don’t control, but under US law, it’s not legal for them to stop you. I don’t know for sure if it applies to fabric, but I don’t see why it shouldn’t.

  18. Birches says:

    As an artist and crafter, I find this discussion very interesting. It’s also very important because of the ease of seeing so much online, especially social media. If I put a photo of my art work or sewing project on my blog, Pinterest, etc., I take the chance that I wil see them copied and for sale. I think that it is important for all of use to be aware of the our and others rights, and be ethical about it.

    To sum a few things up:

    When using fabric & photographs I would asume that I cannot copy a fabric design, make fabric using the design it and sell it. Although I see a lot of new fabric that is a direct copy or has motifs and colors from antique and vintage fabrics. (Is there really anything new?) This comes under creating art from inspiration, (which can have a copyright).

    I should be able to use a fabric as raw material or medium, to create new works of art, unless the manufacturer CLEARLY STATES that it is licensed for a specific customer or use. If a fabric has a limiting licence, it should be only sold for that purpose and not sold in general fabric shops.

    I cannot use photographs without permission, period, except in the case of limited educational use. Anything published has to have permission & credits. If I use a fabric in a piece of art, I can take a photo of that work, which then has my copyright.

  19. shana says:

    I’m not a lawyer, I’m just a plain old average consumer. But I try to be practical. The way I see it, plain and simple: the copyright on the fabric is as simple as this: I can’t take a (let’s say flower or motif) design on that fabric and duplicate that flower or motif design in designing my own fabric for sale. That would be copyright violation. But…if I buy fabric from the store and I use it to make something like a quilt or tote bag, this is not copyright infringment. If I am using the fabric for something I made and then I published my creation in my book, sure, it’s nice to “recognize” the fabric designer in the photo, but I did not violate copyright by using that fabric to create my item, nor did I violate copyright by taking a photo of my creation and using that photo in my book. Not copyright infringement. If I used somone else’s photo and put that in my book, yes. Copyright infringement. But bottom line is, in the big giant world of economics, it’s always nice to recognize designers and products in the books we publish, the articles, web sites, whenever possible. It’s all about the big picture, here. There is plenty of room on the giant economic rainbow for everyone. Let’s all share in the glory of creating beautiful things, and as consumers, having so many fabulous choices to choose from. Thank you to all of the designers of these products for we the consumer to use. I buy your products, you get money. I publish a photo of something using your product, it’s nice to recognmize you in my photo. Let’s all play nice, share, help, and in the end we are all winners. Let’s stay out of the courts. The only winners in the courts are the lawyers that take our hard earned money. Nuff said.

  20. I may be completely wrong here, but from Kate Spain’s latest post regarding this issue, I understood that the totes for sale used an image of Kate’s fabric. So therefore, in a way they were reproducing the fabric. They didn’t actually use her fabric to make the tote’s, did they?

    So for example, it would be similar if I purchased Kate’s fabric, took a picture of a section of it, then uploaded that image to spoonflower to the print the fabric and then used that new fabric for tote bags or anything else. So I am using her design but not her product.

    At least that is what I understand happened.

    • Dawnmarie says:

      April – the tote bags were made with a picture that was taken of the quilt that Emily made, not from reproducing the fabric. The reason it was such a problem was that they cropped the photo to the point that it looked more like swatches of fabric than a picture of a quilt. That gave the appearance of reproducing the fabric. In reality, the image was a picture taken of a quilt.

      • Oh! Ok….either way, I still agree that it was against copyright. If they just took a picture of a quilted bag that was made for the book, I think that would be different, but they reproduced the look of the fabric.

        I feel like part of all of this was left out when they were trying to explain what happened. Not that it’s really any of our business, but people formed sides quickly without all of the details….in my opinion.

        It still made more people think about how they are using fabric and what they are selling. So I guess it might not all be bad that it was made public.

  21. Kim says:

    A reply from the same anonymous designer as above:

    People are not seeing the difference between Etsy sellers/quilt makers/home sewers/small business and a book publisher printing thousands of bags for sale on Amazon.

    THE BOOK PUBLISHER DID NOT PURCHASE FABRIC TO PRODUCE EACH TOTE BAG- IT IS A DERIVATIVE WORK! They purchased fabric (actually were given it for FREE it sounds like) any they are REPRODUCING photos of it in a manufactured bag. It shouldn’t be disallowed but it should involve the designer! Saying that its okay in this sense is saying that if anyone photographs a fabric print and then prints that photograph of a fabric print on (let’s say) a few hundred thousand pieces of dish ware without permission or royalty share, that would be fine. Is that fine? I don’t think thats fine.

    I do recognize the quilt designer in this, she had a hand in the design of the tote bc she made that beautiful quilt, this is why I suggest a joint venture in the sale of the bag, or at least asking permission and offering credit. BTW this happens all the time, permission asking! My understanding of the tote bag was that ALL the fabrics were Kate’s. I might have been wrong about that, but it seems from the looks of them that most are. The single most important point of this debate is that the publisher CEO himself admitted that they should have gone to Kate to work with her on it. He said it was a mistake that he didn’t. He is absolutely right. How it then got handled on both sides in my opinion was not quite how I would have handled any of it. Do it first with kindness, and request, no threats and try to arrive at a fair resolution without wasting anyone’s time, efforts, money or feelings.

    Anyway- there is so much misinformation and misunderstanding and people not really paying attention to how things got made and sold in the example situation getting overshadowed by their own personal dealing with buying and making.

  22. Terry says:

    Wow. Did Ms. Spain actually write on her blog:
    “Similarly, an author or publisher cannot reproduce images of my designs which may appear in their books (for example, as part of a quilt that’s shown in the book) to manufacture/market other merchandise…” (http://katespaindesigns.blogspot.com/)?
    Will there be a legal problem since I didn’t cite her blog in an MLA-type fashion?
    If I bake 100 cupcakes for a party and then photograph the cupcakes, do I need to then document the manufacturers of every ingredient used? Do I need to do that if I put the photo in my book? Can I still make cupcakes?

  23. Paula says:

    I am no lawyer and won’t add anything to the fair use discussion, but I will say that this certainly does turn me off to buying Kate Spain fabric. I agree with Dawnmarie regarding disappointment from other pattern/fabric designers in the last year in this regard. I have found that I can do without their fabrics and patterns.