Fabric vs Machine Embroidery Designs
Here we go again! The neverending battle of “First Sale Doctrine”….Last night I was sent out a note regarding an infamous couple and Loralie Designs. The couple some years ago had taken Disney to court over reselling items created from Disney copyrighted fabric. The case ended by the couple having their auctions on Ebay of goods made with Disney fabrics being reinstated. Plain and simple ….Fabric is a medium to create as by itself it is incomplete.
Enter more copyright fabric, that of Loralie Designs. It was interesting to watch the same debate and the same results. However, something bothered me a bit and I went back quite some years to research the rantings of the infamous couple regarding “First sale Doctrine” and Machine Embroidery Designs. Seems to me any yahoo group where the discussion would pop up regarding copyrights and Machine Embroidery Designs…this couple and their victory would be quoted as enough example to continue distribution, sharing and selling of other’s works. My apologies but English happens to be my second language and I am amazed that those with English being their only language have such a difficult time in differentiating between solid goods and software goods. A book can be read and resold….regardless of who sold it, there is no copyright infringement. However, copy parts of the book and portray them in your writings and you have infringed.
An embroidery design can only be sold by its creator or entities holding selling contracts between them and the creator. The infamous case had nothing to do with Machine Embroidery designs. It had to do with reselling of copyright fabric, especially if the fabric has been used to create items for use. Machine embroidery designs are finished products as such that they cannot be created more or less for sale (unless one happens to be a guru at editing and recreate using parts of various designs). The designs can be used to embellish anything and the embellished items sold.
The concept of First Sale Doctrine seems to be thrown about as a ping pong ball. Does it apply to Machine Embroidery designs? The answer is NO. Machine embroidery designs belong to the individual who thought up their idea, applied the stitches etc and made a design. The print on the fabric is copyrighted. One cannot copy it and print off more fabric…. Does First Sale Doctrine apply to embroidered items created from the designs? YES. The embellished item is a finished product embellished by the designs. One can buy the embellished item, use it and like the book, sell it again.
Maybe what we need is to revert to becoming Trekkies and consider knowledge more valuable than material goods. A word of advice to some who may think that fabric copyright laws have been set in stone by the infamous case vs. Disney. I believe it was last year that all NFL and major sports fabrics were pulled out of fabric stores due to infringement…infringement being that of created goods using the said fabrics and being sold.
As I’m in total mountains of preparation and work before I take off for the Sewing and Quilt Expo at Atlanta, I spent a bit of time today wondering if there is ever any hope in sight. How far have we come as mankind but yet how childish and silly we are in respecting others….only time will tell. But then at that time…how much would we be as humans?
Thank you for discussing this. I don’t have an embroidery machine but would like one and have been reading about them on the Internet recently. I was curious about the clause on many embroidery design sites that says you can’t sell the design. I understand how an embroidery design can’t be shared – similar to how installing a friend’s software on your computer is illegal. What I don’t understand is why a purchaser can’t sell the original CD to someone else. It seems to be legal to re-sell computer software this way and it also seems legal to re-sell (hand) embroidery designs and sewing patterns this way. What is unique about machine embroidery designs that the license to use them can’t be conveyed to another owner?
Thank you.
Melanie, thank you for your comment and welcome to the world of Machine Embroidery. Actually ME Cds are no different than any of the other software cds you purchase. If you purchase say Norton Antivirus, you cannot resell that cd unless it is brand new in the packaging. The license to install is given to one computer (person) which is same as with Machine Embroidery designs. When you are purchasing ME designs you are purchasing them for yourself to use on items for sale or personal use. The original cd, unless it is still in its original packaging and not opened (proof) can be sold if desired. Hope this helps. Hugs, Sadia
Melanie, I didn’t answer one part of your query. You wrote that it is legal to resell original computer software. I’m afraid it is based upon a condition. As long as the original computer software is brand new in box and not opened or installed, yes it can be sold, the same with ME designs. One cannot resell computer software at all if it is already opened or installed (read EULA) As far as hand embroidery designs and patterns are concerned, if they are digital format (computer format) then I’m afraid they too cannot be resold without permission. However, if they are in book or paper pattern state then that is perfectly fine to resell. Hugs, Sadia