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Friday, January 9, 2015

On Using Images From Pattern Companies - Pattern Companies: Be Part of the Awesome!

First off, what I write now is not about the copyright situation on actual sewing patterns. It's about the copyright situation regarding images that illustrate the object(s) made from the pattern.

One big question regarding proper use the site has been the following:

"Can we use the images from the pattern companies' websites?"

This seems to be, in some jurisdictions, a legal gray area. In others (including the German one), the answer is a plain "No, unless you get permission". German "Urheberrecht" is the closest equivalent to US Copyright law, but it differs in some fundamental aspects.

In German Urheberrecht, there seem to be two major relevant aspects:

1. The photographer of a photo always has "Urheberrecht" of a photo. So, if you were to take someone's photo of a pattern envelope from eBay or Etsy and uploaded that to the site, the person who took the photo would have, according to German law, good chances to win a case on "Urheberrechtsverletzung" against us. (Jan 10, 2015: minor clarifications)

2. The images and design of the envelope itself may have copyright protection and might also qualify for "Urheberrecht" as "works of art". However, it is disputable whether the envelopes have a sufficient "threshold of originality" to be actually protected. In essence, the envelopes are product packaging - the actual part of value are the written and illustrated instructions and pattern pieces. Then again,  the "threshold of originality" applied in Germany seems to be low, as well. (Jan 10, 2015: minor clarifications)
Further, the situation seems to be as following:

When I as a site owner let you upload an image to the site that violates someone else's intellectual property under German jurisdiction, I am liable from the point on that I learn about the existence of the infringing item. For my liability, it does not matter if uploading, sharing or displaying it is legal under your jurisdiction (unless you're in Germany).
added Jan 10, 2015: Sharing photos on the Internet is still a very much dark gray and dangerous legal area in Germany. The situation in the US seems to be somewhat better due to the requirement to actually attempt to register a copyright for the claimed-to-be-infringing items before going to court.

What are the potential consequences? If someone (e.g. a pattern company) who does not like what we're doing on the site sees their images displayed on the site they can sue us and it is in principle possible that they might win the case. However,  they risk that this could come with a good deal of negative publicity for them.

On the other hand, search engines are allowed to use excerpts of content as well as preview-images without that being a copyright violation or "Urheberrechtsverletzung". Not excluding web crawlers by means of a "robots.txt" file on the web pages has been interpreted in court as implied consent to the display of thumbnail-size preview images in the context of search services. Personally, I see what we are building here as the ultimate search directory for sewing patterns. Whether official authorities would agree with that is an open question.

So, the answer is really that - while there are points we could make that our use of pattern envelope images is fine - we should ask for permission from the pattern owners to be legally on the perfectly safe side. Incidentally, asking for permission and respecting the other's choice is the most respectful way of dealing with things.

  1. making it much easier for them to non-intrusively collect and aggregate feedback from their customers than the existing social media platforms,
  2. making their entire pattern collections searchable in a really powerful way, in the long run, and 
  3. building a place that respects the effort put into the patterns. We are not copying and sharing patterns or condoning pattern piracy in any other way.
In my eyes, we're actually doing the pattern companies a favor by making it easier to interact with the people who buy their patterns online, by helping people find the right pattern among the huge selection, and by cultivating a spirit of respect towards the pattern creators. Apart from that, making their pattern entries look better with their own gorgeous images is essentially free advertising for their patterns as they show up in our search results. :)

There's really no reason a pattern company shouldn't agree. The alternative is really just that the entries about their patterns will look very sad - without images - if they don't grant permission. In that case, we'd have to use project images of people who agree - just like Ravelry does for patterns where permission isn't given or cannot be obtained.

Any case, I would bet that many will agree that a pattern company that gives permission to use the images will look a whole lot more friendly, confident and awesome than one that doesn't

So, the next step is to reach out to the pattern companies to get permission for the specific use case of their images that we need for the site. It starts with figuring out who exactly I need to contact. Pattern companies: be part of the awesome!

I am not a lawyer, this is not legal advice. It's just some ramblings from a person running an emerging community website.

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