Tartan & Copyright

[CDNSushi]

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.

Reading the info on Snopes, it just seems a whole lot easier to go ahead and simply pay the $35 filing fee at the US Copyright office and have it go on record, legitimately fair & square, instead of trying figure out ways to prove when an envelope was sealed, (and more importantly, that it hasn't been unsealed and resealed since then. Steam works wonders, you know)... ;-)

[Pyper]

I've heard that a freezer works even better. Just throw the envelope in and leave it, and it will open right up. You can even re-seal it, and it leaves no outward evidence.

[Morris at Heathfield]

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)...

No worries. I'm the kind of person who doesn't like to leave a shopping cart unattended, even though I know it's highly unlikely that someone else in the store at the same time wants to check out the same exact groceries, and will risk possibly incurring my wrath, when it's a lot easier to just find their own produce.

I'm not terribly worried, I've just been made a bit cautious by certain statements on the Scotweb website.

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

Thank you. It doesn't really answer my question about how copyright on a tartan is obtained, however.

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

Demonstrating that there may be some reason to be cautious. But of course, some people will breach copyright—or design registration—even when it's clearly evident who the owner is.

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.

I'm not terribly familiar with British law, but in the US the phrase "intellectual property" is basically a portmanteau term covering copyrights, trademarks, patents, and trade secrets. I don't recall ever hearing of design registration before.

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...

Not applicable to me directly, but should I decide at a future date to commission a length of cloth in a tartan I designed, chances are the weaver would be located in the United Kingdom, and I'm guessing the weaver would only be subject to UK law, whatever that may be. Which is kind of what I'm trying to figure out. But maybe I should just do my own research first, or ask a paralegal to do it for me.

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....

Nope, I'm referring to statements on the Scotweb website, for example here and here.

EDIT: Or did you mean maybe the Scotweb folks might have misunderstood the Scottish Register of Tartans Act?

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?

...Posting an image of it here on the forum also creates a record. ...

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. ...

Thank you. That's completely in line with my understanding of how copyright law works, at least in the US, which is why I find the statements on the Scotweb website so puzzling. Perhaps I need to ask Nick what's up.

Ah well, I suppose that, even if things turn out to be according to my understanding of Scotweb website, the worst that could happen is that someone else would get the credit and my Scotweb points. I just hope they aren't allowed to change the tartan's name.

[Calico]

Because tartan is a repeating pattern, and there are only a limited number of sett sizes that are usable, any computer graphics programmer could generate every possible pattern in a very short period of time.

Claiming yours is unique can be counter-productive. You would need to specify the EXACT color of each thread. Normally weavers say "blue". To claim copyright you would either need to copyright every possible shade of blue separately, or specify your blue (using RGB values, for instance). Once you specify it at that level, then someone creating a similar tartan but using a different color thread would no longer be infringing.

And really, just swapping two similar color threads creates an entirely new pattern, even though only microscopic examination could detect the difference.

I think the whole "restricted tartan" and copyright issue is unmanageable when it comes to tartan. Tartan has existed for hundreds of years. How can anyone claim theirs is new and unique to them? It just isn't likely to be true, or at least verifiably true.


Also, after reading your last post, I should mention that Nick has said (on this site) that Scotweb no longer claims a copyright on designs created using their online software.

[Morris at Heathfield]

Well, there are really only two things I care about. The first is that the name of the tartan is preserved. If I decide to create a "Morris of Cowley" tartan, for example, I want it to remain just that. I don't want to find it being sold everywhere as an "Austin of Longbridge" tartan. The second is that I am credited as the designer. I care less about the second than the first, however.

Note: after looking over the Scotweb website some more, it now seems to me that the statements there are mostly Scotweb's way of protecting themselves from copyright claims. That is, Scotweb doesn't assume you hold the copyright on the tartan you supposedly designed in their Tartan Designer: you have to prove that yourself. I am still puzzled by this statement, however:

Note that until a design is recorded as a formal design by being physically produced, any other user can freely copy and commission its production, thereby becoming its legal ‘owner’.

It seems to be at odds with my understanding of copyright law.

[Nick Fiddes]

Thanks to Morris at Heathfield for a heads-up about this thread. I'll try to answer from Scotweb's point of view. But note that nothing I say should be taken as more than personal opinion, and certainly not legal advice, as you're right that our primary interest is in distancing ourselves from any copyright claims or other potential legal wrangles.

However, I have been involved in quite a number of widely-informed discussions on this sort of subject over the year, not least while sitting on the advisory board for the new Scottish Register of Tartans. And there too, the policy has been strongly NOT to make any representation that having a tartan recorded implies any legal rights. Registration provides helpful evidence of prior use, but does not constitute proof of ownership.

The reality is that copyright claims could and would only ever be settled in a court of law, with the parties squabbling over whether this green was too close to that green, or this line was thicker than that line... very much in the same way that music composers sometimes un/successfully argue that someone else has copied their song. It comes down to the perceptual opinion of a judge (quite possibly octogenarian, colour-blind, and with a deep-rooted political prejudice against symbols of Scottish nationalism). So the rest of us simply have to second-guess whether 'this' is too like 'that'.

And it's also true that whilst tartans are ALMOST infinitely variable in theory, it would be trivially easy for someone now to program a computer to permutate every Pantone into every feasbily weavable pattern, publish these on a web site somewhere, and claim copyright. Would anyone wish this to happen? But back in the real world, it is the widely-held view of those in the field that no judge would uphold such a claim. It's on that basis that evidence of 'substantive use' is sought, to help inform others of a possible copyright claim. (And incidentally, you really don't want to have been present at the endless arguments between the 'wovenists' and 'non-wovenists' at which it was finally agreed after a lengthy hearing at a Scottish Parliament committee, at which I had the dubious pleasure of giving evidence, that a tartan could be put to use in some other way than purely woven fabric and still constitute substantive use.)

But this perhaps helps explain why, in publishing the Tartan Designer software as a public service, the last thing we want is to get called in to arbitrate on whether any design therein offends any other. So instead, in effect, we call it a toy, a mere sketch-pad, and ask you to accept this definition should you wish to play with our toy. If you don't want your design ripped off, don't publish it. (You can still use it to design in, but just don't click the sharing button to include your design in the Gallery.) Simple.

So it's only when someone asks us to weave a piece that we then have to consider questions of copyright. And fortunately between our own experience, and that of the weavers, this is pretty reliable.

Finally, for what it's worth, I really quite dislike the idea of 'protecting' tartans anyway. I can understand why some corporates etc. want to, or why a designer who puts a big effort into not just designing but also marketing an attractive new tartan should wish to prevent other commercial competitors from freeloading on their investment. But for me, historically, tartans have been about building inclusive communities, and providing a symbol by which others could express friendship and a common bond or allegiance. It seems to me that copyright turns this on its head, and is the social equivalent of a gated community shunning anyone wishing to show some relationship, which I find a bit sad. I have to ask, why would you want to do that?

This particularly applies to elementary family name tartans (e.g. Bloggs... as distinct from Bloggs of Bloggville, which is fine). I personally have long been dismayed by the rather unprincipled policy at both the old tartan registers of allowing individuals to "stake a claim" to a common family name, and then exclude others of that name from wearing 'their own' tartan (or indeed for someone to register quasi-official tartans for all sorts of countries, states, organisations, etc.). So I'm proud that it was mostly due to my own arguments that the new Scottish Register of Tartans now requires evidence of appropriate authority to register any 'top level' surname (e.g. from a Family Association) or organisational name such as a geographic entity.

So as usual I've rambled on a bit. But I hope you'll see why this is just not territory we want to get embroiled in. As someone else remarked, the chances are that no one will want to copy your design anyway. But if you're worried, don't publish it until it's woven. Once you have a physical sample, get it recorded if you want to make it exclusive, and then all the other reputable weavers will know to steer clear if someone else asks to weave it. But when push comes to shove, and the tartan tat merchants get it copied by a sweat mill in Pakistan, it will be up to you to take them to court (again). Good luck.

[figheadair]

I'm not terribly familiar with British law, but in the US the phrase "intellectual property" is basically a portmanteau term covering copyrights, trademarks, patents, and trade secrets. I don't recall ever hearing of design registration before.

Design Registration is something done throught the British Itellectual Property Office, formally The Patent Office which 'basically' allows a design to protect their design from being sold under another name or altered and sold under the same name.

[O'Callaghan]

I am a Brit by nationality and I am a US patent agent. As such, I am qualified to advise on US utility patents (regular patents, not utility models, which means something else in certain countries) and on US design patents, but not on copyright or trademark, except when advising which type of intellectual property is appropriate, and cannot advise on anything relating to prospective litigation. However, unless I am advising a specific client on their specific legal problem it doesn't count as legal advice anyway, but I have to disclose that it's not legal advice. That was a disclaimer.

Design patents in the US and design registrations in the UK, as well as similar things in other countries, often called design models, protect the ornamental appearance of an article for a set period of time, 14 years in the US and the UK. There are some designs for tartans, but once they expire there is no more protection. Also, although they are colour in the UK, in the US they are black and white!

Utility (i.e. not design) patents last 20 years from filing, and they protect the functional aspects of things, the way they are made or the way they work, summing it up as simply as possible, but they must either be novel (new) or non-obvious (which in European law is termed having an inventive step). You can get a patent for a fabric, or a fastener or even perhaps features like pockets if they are really different, but you can't patent a tartan.

Trademarks protect the use of a name in commerce, and can be renewed indefinitely. However, a trademark would only protect the name of a tartan, not the sett, and to get it trademarked you have to make and sell it.

Copyright covers artistic works, and will protect your tartan sett long after you are dead. Seriously, it used to be 50 years after death, but was extended to 70 (at least in the US, not sure if it's 70 or still 50 in the UK) specifically to keep Mickey Mouse out of the public domain. Really, I'm not joking.

However, the UK, where most of the mills are, has no copyright register. In practice this tends to mean that they need to lodge their sett with some independent register to prove the date, and tartan registers tend to require a woven sample, as Mr. Newsome pointed out.

The US has a copyright register, but to comply with international treaty, copyright has to come into existence when the work is created, not when it is registered. Their way around this is to require you to register only one day before you sue, although you can register earlier if you choose to. This means, however, that although you can search the US copyright register, there is no guarantee that any particular copyrighted work is actually in there. It may pop up the day before they sue you!

Another quirk of copyright that is not found in any other form of intellectual property is that a foreign copyright is all that is needed to sue you. In comparison, you must have a patent, design or trademark in the country where you want to sue. Not so with copyright.

So for example, if a UK mill has proof of their UK copyright, such as, but not limited to, an STA registration, that is all they need to have a cause of action against you in the US. In case that still isn't clear, they don't need to have a US copyright to come after you in a US copyright case, as long as they have copyright somewhere.

OTOH, you have no cause of action in copyright unless you have been copied, which is not true of other types of IP. If you have a design for your sett (which covers the country they are in and hasn't yet expired) you can sue even if they had no knowledge of it, for example.

This is not legal advice, believe it or not, and you are not my client.

[Morris at Heathfield]

Thank you all! Thanks, Nick, for chiming in, and thanks, O'Callaghan, for clarifying the legal matters. I ended up doing a little bit of research online and found this page especially helpful. To summarize my current understanding:

• The UK is a signatory of the Berne Convention, therefore the copyright of a work is automatically assigned to its creator, assuming it's not a work for hire.
• For purposes of legal proof, it is helpful to register your copyrighted work.
• The UK has no national copyright office, only private copyright registration facilities.
• The Scottish Register of Tartans functions as a copyright registration facility. (I'm not quite certain about this one.)
• The weavers have no way of determining the ownership of a tartan, therefore their policy is to weave any tartan they are asked to weave unless they find it restricted on a tartan register to which they have access.

So the basic point here is that the copyright of a tartan resides with the original creator, just as I thought should be the case, but practically speaking it may be difficult to prove your ownership of a tartan in a court of law if you haven't registered it, and also the weavers have no way of determining the ownership of a tartan that isn't on a tartan registry.

And, yes, I realize the above is somewhat UK-specific. In the US you would register your copyright with the U.S. Copyright Office before initiating a lawsuit, but the UK weavers aren't going to bother checking with them before weaving a tartan.

It seems to me, then, that posting a tartan image online is like posting a story online. There's no guarantee that someone won't rip off your story and have it printed and sold to bookstores. Simply posting something online might not be the best form of legal proof, but people do it all the time, and most of the time it turns out okay.

Anyway, I'm not terribly interested in litigation. My main concern was that somehow I could lose legal ownership of a tartan I designed myself. I don't care about legal restrictions, just ownership. The answer appears to be that I can't lose legal ownership unless a court of law somehow determines that someone else is the original creator. (And I assume here that commissioning a woven length of cloth does not constitute legal proof of copyright if it can be demonstrated that I had designed the tartan at an earlier date.) If that is the case, I think perhaps I will take my chances.