Tartan & Copyright

[Morris at Heathfield]

I have seen many other people designing new tartans and posting their work here. I'm inclined to do the same, but based on the information I have found on the Scotweb website (related to their Tartan Designer software) I'm a bit skittish.

If I understand the information on the Scotweb website correctly, the act of designing a tartan and fixing it in some kind of image format is not sufficient to give the designer the copyright to the tartan. Instead they must commission a woven length of cloth in the tartan they've designed. This seems a bit counterintuitive to me, as it's my understanding that according to international convention the act of publishing a creative work in any format is sufficient to assign the copyright to the creator of the work.

I can understand that, if I designed a tartan with alternating black and yellow stripes of equal width, not much creativity was involved. On the other hand, if I spent several hours working on a fairly complex tartan to get it to look esthetically pleasing, how is that much different from spending the same amount of time drawing a picture of a spaceship or whatnot in Photoshop or the GIMP?

Furthermore, it's my understanding (again from reading Scotweb's site) that, if I displayed my design publicly, if someone else saw it and liked it, and if that person was the first to commission a woven length of cloth in that tartan, they would hold the copyright to the design. Money trumps creativity and authorship? That doesn't seem just to me.

Or does tartan fall under trademark law rather than copyright law? I doubt that's the case, ordinarily.

I realize this verges on soliciting legal advice, but I think, given the number of ordinary people who are creating tartans nowadays, that some clarity on these matters is due, perhaps from people who have designed, registered, and commissioned tartans.

Or maybe I just need to wait for this article to be finished, which "will be appearing here shortly" ever since the STA website was redesigned—about a year ago, was it?

[CDNSushi]

Legal advice I cannot give. But gut-feelings are easy and free. If you ask me, I think you're worrying a bit too much about this. Somehow I strongly doubt there are hordes of would-be thieves just waiting for the moment you post up your design to pounce on it, beat you to having it registered and woven, and you missing out on riches and fame.

(Sorry. I wasn't trying to come across as snarky. I really wasn't. But I am relying on a little bit of hyperbole here)...

The fact of the matter is, most people design a tartan that is, above all, meaningful to them... And it's something that they, themselves can be proud of because it's something that THEY designed and created. There is nothing to win or gain by stealing someone else's design. Designing a tartan is for the love of the thing, not because there is a sense that one will profit from it somehow (not usually, anyway).

So my two bits on this -- take a deep breath, relax, design to your heart's content, and feel free to share with the rabble, your family and your friends. If I'm wrong, and all of a sudden there's a Chinese sweatshop churning out Morris at Heathfield knockoff tartans... I'll eat my kilt!

But if you are simply asking for the sake of curiosity and "what-if" as a thinking exercise, I really don't know how trademarks work when it comes to tartans.

[CDNSushi]

duplicate post deleted.

[PEEDYC]

This article may give some insight into the problem:- http://www.lawdit.co.uk/reading_room...se%20-file.txt

See also :- http://www.tartanregister.gov.uk/ This seems to formalise all previous registers of SCOTTISH tartans.

[figheadair]

I've had dealings in the past in order to protect my own designs, and on one occasion prosecute for breach of Design Registration.

I'm no expert but it's clear that this is a hugely complex subject not least because of confusing nomenclature and the fact that many agreements, laws etc are intra-national and not recognised internationally or cannot be enforced without great cost.

There is:

Copyright

Intellectual Property Right

Reproduction Rights

Design Registration (in the UK and often incorrectly called Patenting)

Probably other terms too

Some one has by right as the designer, although one has to prove the design date to be in with a chance, others one can assign or sell and the latter one has to purchase.

Each has different conditions, lasts for different amounts of time, is differently recognised and enforceable.

[madmacs]

Well seeing as you live in texas, and that law relates to the uk... Im gonna take a wild guess and say that even though the law exists it may not be applicable to you... This was recently seen with scotland and the Giggs super injunction...

That doesnt mean however that there are not plenty of international agreements in place concerning copyrights... Some or all of which might apply... ;)

The scottish register of tartans act mentions that a woven sample MAY be sent with the application which is probably where the information you have got corrupted from....

http://www.legislation.gov.uk/asp/20...artans/enacted

Internet copyright and public domain is a whole different mess however...

[M. A. C. Newsome]

I am not a copyright lawyer but I have researched this question quite a bit. The simplest thing I can tell you, at least as far as US law is concerned, is that the question of copyright boils down to what you can prove in a court of law should someone challenge you or you should challenge someone else over the question of intellectual property rights.

Basically, as soon as you design a thing, you have the copyright. The question is can you prove it if you have to?

Registering a design with the US Copyright office provides a record of your design that can help you do that. In terms of tartan, having it registered with the National Register, or recorded with the STA, also provides a public record of your design. Posting an image of it here on the forum also creates a record. Putting it in a sealed envelope and mailing it to yourself (so that it has the post date on it) also can establish when you created the work.

All of the above is just about establishing a way to prove that you did indeed design the thing when you said you did, in case that ever gets challenged.

And, to answer your more specific question, no, you don't have to have the tartan woven into cloth in order to establish copyright of your design. You are, asked, however, to have it woven in order to send a sample in to the National Archives if you are having the tartan registered, and it would be a good idea to also send a woven sample to the STA for their extensive tartan archives, as well. But that's quite different than establishing copyright.

[Father Bill]

Now, how did I know somehow, Matt, that you would have a definitive answer!

[CDNSushi]

Posting an image of it here on the forum also creates a record. Putting it in a sealed envelope and mailing it to yourself (so that it has the post date on it) also can establish when you created the work.

The other information makes sense. But the sealed envelope trick is an urban myth, I'm afraid. Therefore, by logic of extension I cannot imagine posting it up on XMTS would be any different.

http://www.snopes.com/legal/postmark.asp

[Pyper]

The sealed envelope trick could only work if you could prove when the envelope was sealed. Otherwise you could mail yourself an empty envelope and put whatever you wanted in it at a later date.