First sale doctrine and Embroidery designs-food for thought
The past several months I have been receiving many emails privately from friends in the embroidery world as well as some of the copyright law bloggers. The copyright bloggers are genuine attornies maintaining their discussion on several issues including first sale doctrine and software. The topic of the Matteson case vs Action Tapes was discussed by me several months ago but in light of some new “ideas” I thought to impart them to friends.
First sale doctrine pertains to anything and everything that is sold as long as the item being sold can be seen and touched….think about that dear friends. Machine embroidery designs cannot be seen or touched as they are in data format (in virgin form and not final product). True, a DOS based software can see their virgin format but it cannot tell what it is apart from a lot of gloopity glops. No one can tell if the design is that of a flower, a cat etc. It is only when certain software is supplied that the data can be read to showcase what it is. Embroidery machines come with a built in software which reads that data, can resize it etc etc. As far as the identity of whether embroidery designs are data or software is not “YET” determined by any court. The Matteson vs Action Tapes case did one excellent thing for the embroidery IP holders and that is to direct the registration of the machine embroidery designs into the correct area. It matters not if the machine embroidery designs are registered with the copyright office for a case to be initiated. The registration can be done anytime during the first three months of a litigation. Reproduction of a licensed data does not qualify under the first sale doctrine unless it is explicity given which I seriously doubt any digitizer/artist would ever do.
Just some food for thought folks….and food it certainly is. If someone out there can touch and see the gloops of the data that make up the embroidery design, well, let us know please. In the meantime, First sale doctrine does not apply to any machine embroidery designs.
