March 25, 2009

Knowledge, A Powerful Tool (My recent experience with copyright law)

Today, I am going to post about knowledge. It is probably one of the most powerful tools we can possess. Although it is important to have knowledge, it is more important to know how to use it. I know this sounds like an obvious thing to blog about, but I am going to focus on one type of knowledge in particular, that of copyright law.

Many people think they understand how copyright works and how it serves to protect ones work. I have had an up close and personal experience recently that put the knowledge I thought I had into sharp focus. Here's the gist of copyright. Let's say you write a pattern (I am using that because that is what I do, but you can substitute anything here that you can file a copyright for). When you write something that you don't want someone else to literally copy, you can place a copyright symbol and the year on this work along with your name. This is called giving notice and tells anyone who picks up your work and reads it that they cannot take it as their own. The US Copyright Office recognizes notice as an official copyright without having to file a copy with them. However, if someone does copy your work and you would like to be able to pursue damages, then you need to file your paperwork with the copyright office within five years of official publication (or three months if you want to recover legal costs). Most consider your work officially published the first time you place copyright notice on it or make it available to the public. This was all knowledge that I already had and understood (or mostly understood) in the eight years I have been writing patterns for sale in the marketplace.

I also understood that this meant that someone cannot go to a copy machine and copy the work. This is a direct violation of copyright law, which is why places like Office Depot and Staples will not make copies of such works. They can actually be held liable for those copies! This serves obviously to protect the author's work. Most people understand this portion of the law and for the most part respect it (we hope!).

This next part is where people get confused. Let's say that you come up with a design idea (like a bag with a removable liner) that you think is ingenious and you write a pattern for it. That idea is NOT protected under copyright law. Your interpretation of this idea is, like how you design it and how it works in your pattern, but only through the expression of it in your pattern. Copyright law allows for two people in different places getting the same idea at the same time and acting upon it. Why? Because these two people will interpret the idea in a completely different manner, therefore, both of their works are protected by copyright. If you visit the US Copyright Office's website, this fact is one of the first addressed in the frequently asked questions portion. Because copyright law works in this manner explains why there are a bazillion bag patterns that seem similar or a lot of other types of designs for that matter.

Where copyright does protect is in the area of author's expression (words, illustrations, pictures, etc.). It is that intangible that makes your pattern read, feel, and look differently from someone else's. Every person has their own style of speaking and writing. When that comes through in written text, it becomes unique to that person, and is protected by copyright. Think about it, there are only so many ways to tell someone how to cut a square or rectangle or put a basic bag together. These are things that are in the public domain, and not protectable under copyright. It is what makes your writing and presentation unique that puts you under the copyright umbrella of protection. If someone were to copy that unique style into their own work, they are infringing upon your work!

Being in the publishing business makes the author vulnerable to people who don't understand the way the law works. Unfortunately, we will encounter these people from time to time and it can be very expensive to defend yourself if this happens. I recently encountered one of these people regarding a pattern of mine. She too is a designer in the industry. She was under the mistaken impression that she could copyright an idea. It was interesting because her interpretation of said idea and mine could not have been more different and the best part of the whole thing is that I had never even seen her pattern before! If she or her lawyer had performed due diligence with a proper investigation, I would never have known what I know in-depth now, so you can call me a tad more knowledgeable.

If you think that someone has copied your pattern, the burden of proof is upon you. The best thing to do in a situation like this is to see for yourself if there is anything to it before going any further. You end up saving yourself and others the hassle if you find there is nothing to it. On the other hand, you are prepared if you do find proof that your work has been compromised and you have made it easier for your legal counsel to investigate. In my opinion, any reputable lawyer understands that their reputation is at stake as well and will not work on your behalf regarding this type of allegation if they know there is no colorable claim.

Thankfully, this situation ended in my favor as we were able to secure a release agreement from this person who acknowledged there was no infringement. What I want to impart to you is that we are all vulnerable (even our retailers) to people like this, and unfortunately, if you are put in this situation you may have to defend yourself.

So here is the knowledge you can take from all of this:
1. Copyright law does not protect your idea.
2. Copyright does protect your published work as an "expression".
3. If you think that someone has infringed upon your work, do your homework and investigate!
4. Take action with legal counsel if you have proof that your work has been compromised.
5. Defend yourself, your work, and your reputation if you have is worth it!