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: