Tuesday, September 18, 2007

A not-so-short bit on copyright.

Keep in mind that I'm not a copyright lawyer - I'm a writer and knitter who keeps up on my legal rights and responsibilities. And I'm writing for an international audience, and laws vary. So I'll keep this general. But ultimately, copyright in a legal sense is not what most people believe it to be, and a lot of the rules we knitters adhere to are not, legally speaking, copyright law, but professional courtesy and industry standard. (That's why I often get VERY annoyed when people on knitting message boards shriek about copyright, but that's a rant for another day.)

Copyright was originally developed/invented to keep other people from making money off your ideas. As I recall, it was originally applied to industry - inventions of the indsutrial era, like reducing cylinders and spark plugs. Physical STUFF you could put your hands on and determine easily if there was copying going on. The idea of copyright and/or plagarism in writing didn't come along until the idea of royalties; until then, you were paid a flat fee to produce a work, be it novel, broad side, or even play; you had your pay check, and it didn't matter if people copied it. I suspect no one cared much about copied work or intellectual property (as we call it now) until the 1600s when all of a sudden, amature 'natural scientists' were doing experiments and getting into quite ugly arguments over whose idea was whose. Scientific journals began to be published, to put it all in writing, and the idea of an idea belonging to a single person kind of washed over to writing and music.

That's what the current laws were put in place to deal with; that's ALL they deal with in a planned, coherent sense. At the moment, we are trying to hammer out exactly how we're going to deal with the new crop of problems created by the internet; here in the US this has spawned the DMCA, a well-meaning but ignorant attempt to halt all sharing of copyrighted material and intellectual property across all of the internet. (Yeah. That'll work. Short blurb here.)

What does all this mean for us? Well, the only part of knitting that is currently copyrightable, meaning that it can clearly be labeled your proerpty, and you can prosecute in court over it and if you prove it IS your original work the court will find in your favor, is THE WRITTEN PATTERN. Not the pattern itself, in the sense that any of twenty versions of directions will prodcue the same sweater. No. The actual words and phrasing used to describe the process of knitting that specific sweater that specific way. In that sense, it is the same as writing an article about knitting that contains no pattern at all; it is the person's work, and to copy it is plagarism. That means, legally speaking, I could re-write the pattern for, say, the Baby Surprise Jacket, and it would be my original work. This is a gray area of copyright law, that will eventually result in a lawsuit when a fed up knitter scrapes together the dough for a lawsuit and forces through a precedent that copyrights original knitwear. But so far that hasn't been done.

In the mean time, it's kind of an industry standard to frown upon that kind of thing; people HAVE rewritten the directions to famous sweaters, and have been told politely by the original author to cease and desist or get sued. So far the person committing the fraud has always backed down. But in the case of famous knitters, the industry looks the other way: Brandon Mably swiped Teva Durham's famous fair-isle short rows, made them into stripes instead, and played dumb when people complained about his theft of her idea. I've seen several versions of directions for mobius scarves that don't even mention Cat Bordhi's name. And because the WRITTEN DIRECTIONS are original, even if the technique is not, it's legal. It's bullshit, but it's legal. At least until someone sues over it and makes a new law. (That's how it works in the US, anyway.)

And so we come to copying, which all of us do, consciously or unconsciously, with everything we do. Knitting is grid-based, and has been going on for about a thousand years; it stands to reason that a great many patterns, especially small, repetitive, geometric patterns, have been reinvented, over and over, dozens of times, by people all over the world. Generally, when I come up with something 'new' (like the twisted-stitch pattern I used for the Husbeast Gansey last year), I assume someone else has already done it, because odds are they have. Inspiration also isn't copying; the Gustav Klimt painting that Kaffe Fassett then knitted, isn't a copy. A copy would require paint and canvas. Though I think for many reasons idea sources should be listed, among them good manners and the education of the person reading, it's not legally required.

Then, of course, there are the outright copies. We'd like to think that honest-to-gosh copyright infringement is prosecuted to the full letter of the law, and the person doing the copying has their career end, but rarely is that the case. Just ask Nora Roberts; Janet Dailey, another novelist, ripped off her work and even after Nora prosecuted, Dailey is still publishing with her same publishing house (comments by Nora, here). It's even worse, and harder to prove in knitting. Recently someone was found, selling Knitty patterns (among other free patterns from Berroco and other yarn sites) on e-Bay. The best that the authors could do to rescue their own work was report the seller to e-Bay and demand he quit selling. He did, but I bet he's back, somewhere else, selling someone else's free patterns.

There are ways to trace these things, at least on the internet (the easiest way is to find a unique phrase in your pattern or article, and plug it into Google and see what Google coughs back at you). Whenever I do it, I wind up annoyed, because you land back in that copyright gray area that needs big bucks and lawyers to solve: My history of knitting article is quoted on Wikipedia. They put my name on it and give me credit, so it's not a copyright violation, but I dislike having my work used on Wikipedia. You know what? As the law stands, I'm shit out of luck.

Copyright doesn't give you full rights to your original work forever and ever, so you can control it. Even ideally, all it does is keep other people from profiting by it. That's all.

EDITED TO ADD: A far better example of what copyright will not do, than me and Wikipedia: Paul Simon (the musician) has said openly that he does not like punk music. This led to at least half a dozen remakes of his music by punk bands wanting to shoot him the finger (including the Lemonheads' version of Mrs. Robinson, in my opinion better than Simon's original). As long as the punk bands give credit to Simon as the writer of the music, and pay him a cut of the royalties, there is not a single thing Simon can do to stop them. They are not depriving him of income; they are contributing to it. Too bad, Paul. Welcome to the fucked up world of copyright law.

Plus, for a knitter's view on copyright, head on over to Girl from Auntie. She blogs about knitting industry copyright and ongoing lawsuits. She knows how to knit, too; she's the designer of Rogue.


Caroline said...

Wow, that was some good reading (and writing, on your part). Thanks!

And...while we're at it, I would really like to recommend more knitters to check out Creative Commons and their licenses. While they won't change any laws for you, they are very clear and would make it more clear for others to see what you will accept and what you won't.

Mary Lynn said...

Good insight into lots of copyright issues. I do happen to work for a trademark and copyright lawyer. Generally, many things can be protected but you have to be not only proactive in protecting them in the first place but also in maintaining the protection. Not always and easy scenario unless you happen to be mega-corporation with mucho bucks.

The biggest problem with the creative arts is the various mediums things can be created in. Plus, the designers themselves could have it argued against them that if they didn't want to be copied, why did they publish a pattern. Patterns are the groundwork for all copying. How many of us have picked up a pattern and it says "suggested yarns" not "you have to use these yarns, in these colorways." By design and through publication we are encouraged to copy AND be creative in making changes and adjustments. It then becomes our own.

By the way, many many years ago, I am older than dirt (some days), my Mom knit me a mobius scarf. I had started working downtown, right on the banks of Lake Erie and she kindly knit up this wonderful tube thing that I could use to keep my ears, head and neck protected. It was 1972. She made me another one in pink mohair in 1974 or 1975 when I got a new winter coat . . . how special is that! It was something that her Mom used to knit, way before Cat Bordhi was even born. Same idea, different kinds of yarn, an easy knit and perfect for those being exposed to wind chill

Netter said...

Great overview. I work for a publisher and copyright comes up all the time. EZ also does a meobius; a different technique than Cat's but same kind of idea.

Amy Lane said...

And to make things more fun, in fiction, Copyright is trickier...people can co-opt your stories, change a few names, and make a fortune on someone else's work...

Anonymous said...

i have a strong bias against actual plagiarism -- claiming another's work as one's own. but i still find it ridiculous to punish students for "self-plagiarism." how can i steal from myself?

suppose that i write a paper on how xyz relates to abc in my freshman year, and turn it in to my xyz prof. i get an 'a.'

the next year, when i'm taking abc, i turn the paper in to the abc prof -- perhaps with some additional insights gleaned while studying the issue from the abc perspective. the abc prof then runs it through a database and busts my chops for "self-plagiarism."

i can see criticizing me for laziness unless i considerably reworked the original paper. but if i'm clever enough to write a paper as a freshman that i can update/recycle/modify later in my career, why shouldn't i? if i still think what i thought then, why write something different? i'm not being paid (unless you consider a grade payment) -- i am, in fact, paying for the professor's opinion of my words, and s/he is entitled to dump on me for poor thinking or bad spelling or laziness -- but for repeating myself?

i don't think so . . . not when profs regularly revise, say, 20 or 30 or 40 pages in a 400-page textbook, raise the price $15 and require the new edition for their classes. is THAT self-plagiarism? if so, it's richly rewarded. (ask me about my daughter's pile of textbooks the college won't buy back -- sorry-- new edition. sorry -- you highlighted in yellow except on page 37, where you used blue. )

and while frequent, significant revisions may be justifiable in a rapidly changing field such as nanobiology or neuropsychiatry, i doubt there's that much different that needs to be or even can be said about, say, "beowulf."

i suppose such recycling of my thoughts could be considered an unfair advantage over my fellow students. but having an iq 20 points higher, or a family income high enough that i don't need a part-time job also could be considered an unfair advantage.

if i have better-developed thinking/research/writing skills, i ought to be able to use them to my advantage, just as the girl who starred on her high school basketball team but isn't competing for our college will outshine me by far in gym class. or is she "self-plagiarizing" too?

(now, if i'm working for a newspaper or a chain of them and rerun old material without identifying it as such, the purchaser has a grievance: s/he is paying twice for the same thing. that was john rosemond's downfall awhile back.

your mileage may vary

ellen in indy

Alwen said...

Wow . . . you have comment spam! Haven't seen any of that in a while.

Generally patents are what protects physical stuff, like light-up knitting needles. I always dread reading the word "copyright" in an email list or on a forum, because those discussions just blow up like balloons.

If you want some weird reading, check out Google patents. Lots of knitting patents, and how about "Method of swinging on a swing", patent number 6368227? I swear I invented this by the time I was 5 or 6, and that's long before this patent was filed. . .

Does Cat Bordhi credit EZ's moebius scarf?

Julie said...

Cat Bordhi doesn't need to credit EZ for the mobius scarf because the construction method is totally different. TOTALLY different.

I agree that the idea of self-plagarism is ridiculous. (I once foot-noted myself on a research paper in college, just for laughs; fortunately no one caught it.) I also think deliberate plagarism should be a shooting offense.

And congress needs to get the hell over steroids in baseball and investigate the college textbook ripoff racket that exists.

Arianne said...

I'd be interested to know what your views are on the copyright palaver with Ms. Starmore and her former publishers...

Thanks for this though. It's really helped explain things to me. :)

an said...

having just spent a ridiculous amount of time in school, generally self-plagiarism is a problem because:

a)the assignment probably had something like 'original' in the description. All of mine currently do, and if not, it is a fairly obvious and widely understood expectation. Each class includes an assumption of a particular amount of work. So much reading, so much writing. Handing in the same paper twice violates those assumptions.

If your work is based on something from a previous term (which I've totally seen done with the professor's approval), you need to be able to show that there is something significantly new about the work you did, ie. somehow you learned something new in this particular class so that the professor has reasons to believe that you deserve the grade you get.

b)having to quote yourself is not something that just students have to do, and it's frowned upon because research is generally expected to be of a higher academic standing than a student's paper. Unless you've discovered something brilliant and groundbreaking and new. Which, unless your schools have been much different than mine, doesn't really happen all that much.

Everyone gets to join in on the fun, just check any academic book's list of citations. The number one and two most commonly quoted authors will be either the author of that book (esp. if they've written more than one book/article/whatever) or the author of the source text. Forgot the author's last name? Check the bibliography.

Donna Lee said...

Now that my head is spinning on my shoulders from all this information....I still agree that plagarism is a shooting offense. Protecting your creative work seems to be very difficult. If you look at Lene's (lenealve.blogspotcom) blog where she took a cardigan sweater and turned it into a tunic (very nicely), it looks like a completely different sweater. Theoretically, she could call it something else and call it her own. She chose to credit the original design that inspired her creation. That seems fair and right.

b said...

I know I'm a little late on this, but what did you think about the interview with the "Old Guard" in the Fall VK?