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Westminster Fabrics Adopting Minimum Advertised Pricing Policy
Retail shop owners recently received a letter from Westminster Fabrics informing them of a new policy that will take effect February 1, 2009. This policy forbids shops from advertising prices for Westminster and Freespirit brand fabrics below the Manufacturer’s Suggested Retail Price (MSRP), which is 2x the wholesale price. They cannot advertise prices lower than that for the period of one year from the official release date of the fabric. If shops violate this policy, Westminster says they will not honor orders from that shop for the period of one year.
Additionally, there is a 25-cent increase in wholesale cost of their printed cottons (not the home decor weight sateens, though), effective January 1, 2009.
The new policy allows retailers to sell the fabric at whatever price they want — the key word here is advertising. (Shops will also be allowed to offer “standard volume discounts.”) Such a policy is nothing new. If you’ve ever seen prices advertised (or listed on online retailers such as Amazon) as “too low to publish,” you know the product’s manufacturer has a Minimum Advertised Pricing (MAP) policy. MAP has a long legal history, but most recently, in June 2007, the supreme court ruled that MAP is not “per se unlawful.” Here is a good overview of MAP from the Wall Street Journal.
In trying to learn about MAP, I’ve come to the conclusion that one needs far more education in economics, marketing, and law than I do to have a truly informed opinion on the matter. The retailers I spoke to have a number of questions about specifics that have yet to be answered. (I emailed Westminster for comment, but have not yet received a response. But it’s just after the holidays, and they’re likely dealing with a barrage of questions from their customers, so that’s understandable.) What is certain is that come February, fabric consumers will have a much harder time finding new collections for lower than $9.50/yard retail. It’s unclear whether the policy will be retroactive to earlier collections, so if you’ve had your eye on something, you might want to be safe and snatch it up before the end of this month!
The letter explained that the policy is being enacted to protect Westminster’s identity as a premium brand.
In the internet age, MAP policies effectively level the playing field between brick-and-mortar and online shops, the latter of which can afford a lower markup due to lower overhead costs. In the fabric world, there is also a third player — Etsy- and eBay-based shops, which have even lower overhead costs than stand-alone online shops and tend to offer the lowest prices on fabric. Typically with MAP policies, any online listed price equates “advertising,” and it’s difficult if not impossible for retailers to adopt something like Amazon’s “add to shopping cart to see price” workaround, a technique that usually appeases MAP-enforcing manufacturers.
I can see a number of pros and cons for fabric retailers. The biggest advantange, of course, will be getting higher profits, which makes for a more sustainable and happier business. And don’t we all want to support our favorite fabric shops? Online discounters will lose some competitive edge, but it does help protect brick-and-mortar shops at a time when they need all the help they can get. Of course, volume discounts (e.g. “10% off orders of $50+) are still OK, and retailers can still compete price-wise with other manufacturers’ fabric (not to mention other avenues that help one stand out in a crowded marketplace).
The biggest problem I foresee is that retailers will no longer be free to put fabrics on clearance that are not selling well for them. A year from the date of introduction seems like an eternity in the quilt fabric world. That might make retailers more conservative in what they order in the first place, and that’s not good for Westminster or the consumer. Or is this danger offset by the positive aspects discussed above?
What do you think? As a consumer, will the price increase hurt you? Is price your main concern when choosing a shop? If not, what is?
If you are a retailer, how will the MAP policy effect you? Is my assessment of the pros and cons accurate? (Feel free to comment anonymously.)
How does everyone feel about MAP policies in general — as applied any goods or service, not just fabric?
Update on Marimekko / Dolce & Gabbana Lawsuit
The previously posted dispute between Marimekko and Dolce & Gabbana has been settled in Marimekko’s favor. A no-brainer if I ever saw one! According to this news story, D&G will be paying Marimekko for using the famous (and copyrighted) Unikko pattern. (via the Marimekko Blog)
Beatles Fabric by Cranston Village
Here’s what inspired psychedelic week on the Daily Swatch: this new Beatles fabric line from Cranston Village. eQuilter has the entire collection for sale now, and I bet it’ll be a huge seller. If you see it elsewhere, please link to in the comments.
The descriptions of the fabric on eQuilter contain the following:
from the ‘The Beatles’ collection, © 2008 Subafilms Ltd, a Yellow Submarine TM Product, licensed by Apple Corps Ltd., for Cranston Village. License required for any use beyond individual consumption.
I have addressed the issue of fabric printed with licensed characters in this previous post. As far as I know, restrictions on reselling goods made with fabric have not stood up in court. But, I Am Not A Lawyer, so don’t go solely on what I say!
Fabric and Copyright Revisited: Law, Ethics, and Name Recognition
We’ve been through this a few years ago with Amy Butler — a blogger found a vintage tablecloth by an anonymous designer that Ms. Butler reworked for one of her quilting fabric lines. Ms. Butler turned out to be extremely gracious and open amidst the controversy and transparent about her process, and I learned a great deal from her and others along the way.
But what if a contemporary designer re-works something by a well-known designer from the past?
Recently I came across such a fabric. It is currently on the market and is clearly a re-working of a textile pattern by one of my favorite midcentury designers. The midcentury designer is deceased but still well known to this day (if not a household name) and has a distinct style. As far as I can tell, the contemporary designer does not give credit to the original designer anywhere. The two designs are almost exactly alike, except the re-working has fewer fine lines and is recolored.
I emailed the following to the contemporary designer twice but got no response.
The topic of intellectual property laws in regard to fabric design is one I continually visit on my blog. As copyright information on early-to-mid 20th century designs is often indeterminable, and both designers’ and consumers’ desire for vintage reproductions and vintage-influenced work is strong, I am interested in how contemporary textile designers navigate this territory. If you have a little time, I would love to have your comments on the subject in regard to your ______ design and your work in general.
My initial reaction upon discovery of the re-working was mild disgust. Such a prominent designer blatantly ripping off a recognized midcentury artist! The scandal! But over many iterations of that email, I realized that I don’t know all the facts. The curiosity that I tried to convey in the email is sincere. I don’t know whether the original designer’s works are protected or are in the public domain. Copyright law is complex and I’m not sure how it would apply in this situation.
But even if the contemporary designer is legally in the clear, what about ethically? My reaction is that it’s wrong for an artist to use the work of another established designer, dead or alive, so literally. But public domain vintage designs byanonymous designers are reproduced/recolored all the time, and is that not OK? There’s a parallel here between covering/sampling in the music industry, which in my opinion is ethically fine. I guess my source of discomfort is when people don’t give credit. Am I naive in thinking that’s something fabric designers should be obliged to do? And if so, where does one draw the line between less direct influence and more direct “re-working”?
I’m not naming names in this post because I don’t want this to be a pile-on of the contemporary designer. I am more interested in the overarching issues than in pointing fingers. If you have a better understanding of copyright law, ethics, and fabric industry practices than I do, please comment. Even if you don’t, I still welcome your thoughts.
Further reading:
- This post from Feed Dog, which points to this helpful article about copyright and craft and some books that argue that too-restrictive application of copyright law stifles creativity.
Marimekko vs. Dolce & Gabanna
There is a trademark dispute between Marimekko and Dolce & Gabbana over Marimekko’s signature Unikko floral pattern: news story, Marimekko blog post. I don’t think there is any question of Unikko’s origins; maybe it’s more about the legal technicalities of trademark ownership? I’ll be interested to know how this turns out … I can’t imagine that D&G have any leg to stand on.
From the Marimekko website:
Unikko came about in 1964 after Armi Ratia had announced in public that no floral fabrics are designed at Marimekko. Maija Isola did not accept rules or restrictions and designed in protest a complete collection of bold floral patterns.
Today, Unikko is probably more popular than ever, and an innumerable amount of different Unikko-pattern products is available. The range of available colours is also very large. Kristina Isola has designed a Mini-Unikko family of products for children.
More on Fabric and The Man
Hello Kitty. Turns out you can make things and sell them from fabric bearing licensed characters.
My previous posts here and on Whipup about fabric legalities garnered lots of interesting comments. People are all over the map with their opinions. One new thing I learned:
I assumed that fabric printed with licensed logos/characters were in a special class and of course you can’t resell items you make from it, but what do you know? I was wrong. One commenter pointed to Karen Dudnikov of the company Tabberone, who has successfully fought against numerous corporate behemouths over this very issue. Companies such as Precious Moments, Major League Baseball, Disney, Sanrio, and M&M/Mars have forced eBay to shut down her auctions because she was selling products made from fabric with their licensed whatevers on it. Check out this audio interview, this article, and this article. Also see her own page detailing the legal battles she has had.
Karen Dudnikov has actually been pointed out as an example in the comments before, plus she wrote her own comment following my first post on fabric and copyright. Sorry for not putting two and two together earlier — I guess it’s because the issues involving copyright, licensing, and trademarks are so confusing and I was trying to separate out the trademark issues at that time.
Then and now … the vintage source (left, from Tumbling Blocks) and the reworked Amy Butler fabric (right)
Also, Amy Butler’s response on Quilter’s Buzz to the controversy surrounding her Chrysanthemum design (within her new line Belle) has been out there for a little while now. Have you read it? Very interesting. I am intrigued by the documentary swatch houses she mentioned. Now that’s the business for me! Anyway Amy Butler says that these houses make sure that the designs are in the public domain. Hmm — I wonder how these places are able to do that, and if they really exclude designs of unknown origins. I also wonder whether “make sure” means “we will take the legal responsibility if the design turns out to be protected by copyright”? I don’t mean to sound accusatory, I’m just curious! But I still don’t think it’s smart or cool to restrict product sales, which, keep in mind, Amy Butler is still doing to those who buy her fabric wholesale. [edited to add: Amy Butler's fabric no longer carries any such restrictions.]
Shortly before that post, Liesl of Disdressed wrote a great post about the Amy Butler affair. It appears that the fashion and fabric industries have always been quite cavalier about lifting or re-working vintage designs. The practice doesn’t seem to have bitten anyone in the ass — yet — any maybe it never will. As I responded to her post, just because it’s done all the time doesn’t make it ethical or legal, but my uppity righteousness on this issue is very much at odds with my desire to see more vintage inspired and vintage repro prints out there on the market.
Note: A version of this entry was originally posted on Dioramarama on November 17, 2006. See original entry for any reader comments.
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.
Fabric and Intellectual Property
I’ve been wondering about copyright laws as they apply to fabric. The question of interest to probably most of us: is it legal to use fabric to create something that you turn around and sell with your own label on it? Internet research yields some enlightenment. I know some designers (e.g. Munki Munki) specify that their fabric can be used for personal creations only, not for resale.
The Amy Butler website says:
“You can make items for sale on a small scale, for example, from your home for a craft bazar. If you are purchasing the fabrics at retail cost, you can use them to make a few items. You can not ‘produce’ items to sell in mass on a website or in a store, or for ‘wholesale’ – manufacturing items to sell to retail shops, catalogs, or websites.”
From those two sources alone, it seems like the answer is “it depends on the company.” I couldn’t find the question addressed on other company websites, such as Michael Miller, Alexander Henry, and Robert Kaufman. If you are selling items, it would probably be smart to contact the manufacturer to find out their policy. But then there is what the companies say vs. the law of the land, which appears to vary across the country. From this thread on the community.lawyers.com message board:
“The typical issue involving fabric is whether the use of copyright-protected fabric to make an article of clothing (or something else) constitutes the creation of an unauthorized derivative work. The law on this subject is not uniform throughout the country. In some circuits, simply making a ‘mechanical transformation’ isn’t sufficient. In other circuits, you would have to alter the copyright-protected fabric itself. In other circuits, a ‘mechanical transformation’ is sufficient.” (What does mechanical transformation mean in regard to fabric? Hmm.)
I would bet that if a company’s policy is more strict than local laws, it wins out — that, in buying Amy Butler fabric, you’re in essence agreeing to their user policy — but of course, I am not a lawyer.
And what about, say, scanning a fabric and using the pattern as the background image for your website, or printing it out on paper to use in projects? It’s almost certainly illegal to reproduce patterns/designs to make other materials for financial gain (though I can’t find that stated explicity anywhere), but what if it’s just for personal projects? If it’s for your own scrapbook or whatever, of course nobody’s going to know, but what about using it on your blog?
I also wonder about these issues in regard to vintage fabrics. I figure nobody’s going to come after you for doing anything you can imagine with any pre-1980-or-so fabric, but I’m still interested to know about how copyright/intellectual property law applies here.
Note: A version of this entry was originally posted on Dioramarama on October 23, 2005. See original entry for reader comments.
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