Lisa G. ([info]poledradog) wrote in [info]knitting,
@ 2007-02-07 17:39:00
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Question about copyrights
I recently made these water bottle cozies.  I did them by adapting this pattern on Knitty.

Several people have asked for my pattern.  I want to write up some instructions, but was wondering if there were any copyright issues with doing so.  I feel I've changed the pattern enough, but I'm just not sure.  Differences are:

- I wrote up my pattern to be math based, rather than number of stitch based.  I.e., figure out your gauge, figure out the size you want to make, and then plug in the numbers to figure out how many stitches to cast on, rows to knit, etc.

- My pattern is felted, but could be worked either way (just effects how you calculate your stitch gauge)

- Where the original pattern stops, mine continues the length of the bottle and is then drawn up at the bottom in a circle (no decreases or anything).

Are there any issues with my sharing this?

Also, a number of people at my kids' school have suggested that I make these up to sell at the school store.  What issues would there be with this?



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I'll be darn glad ...
[info]sassysean
2007-02-08 12:58 am UTC (link)
... when you get an answer from the knitting Einsteins. Those are the bomb. Good job. Very nice pattern.

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Re: I'll be darn glad ...
[info]poledradog
2007-02-08 01:06 am UTC (link)
Thanks!

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[info]pickleboot
2007-02-08 12:59 am UTC (link)
that is a tough question. for the main part i would say that you used that pattern as a jumping off point and as inspiration. i would email the person who wrote it and see what she says- but it looks like a different thing, there is no fair isle, and does it hold the bottom as well?

they are really cool!

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[info]poledradog
2007-02-08 01:08 am UTC (link)
Thank you! I'm pretty pleased with them, too! :)

Yeah, I wasn't sure if I should contact the person who wrote it, or Knitty, since they published it.

And you're right, there is no fair isle (didn't think about that). It does hold the bottom.

I was thinking "inspiration", too, and since it's a free pattern, I can't see that anyone would have a problem with me giving away my version free, but still wasn't sure if there were hoops I should jump through before doing so.

And there's the still the question if I can make these and sell them.

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[info]pickleboot
2007-02-08 01:12 am UTC (link)
contact the author- she might want credit as the insiration for. there is all that legal stuff, but to be honest, had you not said anything, i never would have put that together, the pattern on knitty i mean. i applaude you for being so honest.

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[info]poledradog
2007-02-08 01:13 am UTC (link)
Well I'd rather be honest now than get in trouble over something so silly. Maybe I'm just paranoid. ;)

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[info]sbee
2007-02-08 01:42 am UTC (link)
oh, and from what I understand, there's nothing wrong with making an item featured in a copyrighted pattern and then selling that item. Copyright only extends to the pattern (i.e. on paper) itself, not something that is created by referring to it! :)

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[info]crayolaab
2007-02-08 02:21 am UTC (link)
I believe this is incorrect, but don't have time to dig up the links to support this at the moment. I will try to do so later. I wonder why you think this is okay?

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[info]crayolaab
2007-02-08 02:22 am UTC (link)
(MTA: No links, but one evidence I would suggest are the selling of "cottage licenses" by companies such as www.woolywonder.com and www.littleturtleknits.com, giving knitters permission to sell items made with WW or LTK patterns).

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[info]sbee
2007-02-08 02:23 am UTC (link)
Because I've studied the law...

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[info]brockengespenst
2007-02-08 07:37 am UTC (link)
it's actually not true at all. you cannot sell items knitted from a pattern published by someone else without his or her permission. that still constitutes as profiting from someone else's copyrighted work. i also wonder what led you to believe it was okay? is there a specific law you are referring to?

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[info]sbee
2007-02-08 07:45 am UTC (link)
I am basing my responses on specific law. Canadian Copyright Act, for one, which falls into line with all of the big International copyright treaties...

What are you basing your opinion on?

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[info]brockengespenst
2007-02-08 08:36 am UTC (link)
http://www.intellectual-property.gov.uk/faq/using_copying/knitting.htm

http://knitty.com/ISSUEfall03/FEATcopyright.html

http://knitty.com/ISSUEfall03/FEATcopyright.html

http://www.copyright.gov/circs/circ1.html#wwp

basically, it comes down entirely to whether the original publisher/holder of the copyright says you can. a knitting pattern is a specific set of instructions rather than a method or style, and thus is significantly unique to be copyrighted. once it is copyrighted, the holder of the copyright is free to determine whether the pattern may be used for any form of profit. additionally, your analogy for recipes does not hold true because really:

"A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection."

and anyway an analogy is no basis for giving someone advice on whether or not they will get sued. some pattern designers don't care whether or not you ask, but some really really do. you always should.

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[info]sbee
2007-02-08 05:32 pm UTC (link)
"a knitting pattern is a specific set of instructions rather than a method or style, and thus is significantly unique to be copyrighted." NO, this is not "unique" to copyright protection...this is exactly what copyright protects, the original part of a work, right across the board...

And once again, JUST LIKE A KNITTING PATTERN, a recipe WILL LIKELY HOLD COPYRIGHT PROTECTION as to the "instructional" portion of the pattern, BUT NOT to the LIST OF COMPONENTS ("ingredients" in a recipe; "stitch techniques and materials" in a knitting pattern). They are highly analagous.

The issue of selling something you make that was derived from a pattern that you did NOT make DOES have implications in contract law...i.e. if you click "yes I agree" to a blurb when you downloaded the pattern saying that you wouldn't make and sell the item. Aside from that, the only other times you would likely be open to an infringement suit would be where the designer of the pattern held a different type of protection more akin to patent/trademark, rather than copyright, which is HIGHLY unlikely in the case of a knitting pattern. There might also be problems where you sell the item and represent the design of that item as being your own. Generally though, I'm sticking to my guns here. If you take a pattern for knit socks and make 50 pairs in assorted colors and so on, you're generally quite free and able to go sell those at a fair as long as you don't claim to be the creator of the design (and only instead the product).

I'm not going to continue arguing about this with you. I am very clear on copyright law and how it would apply to many things, including a knitting pattern.

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[info]brockengespenst
2007-02-10 05:11 am UTC (link)
you can't continue arguing about it with me if i won't continue arguing about it with you. you arn't the only person in the world who both knits and has studied copyright law.

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[info]a_u_n_t_i_e
2007-02-08 12:47 pm UTC (link)
If you are basing your opinion on Canadian law, you forgot about works of artistic craftsmanship.

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[info]sbee
2007-02-08 05:38 pm UTC (link)
I'm not forgetting about works of artistic craftsmanship. A work of artistic craftsmanship in this case would be the knitted item itself, coming from the designer of the pattern. So if Mabel made a pattern for a shirt, and then MADE the shirt in a particular color with a particular motif, so long as that motif itself in the shirt itself (not the design on paper in the pattern---that already holds copyright) is "original" (fixation isn't a problem) then it would hold copyright too. Someone could still use the original pattern and make whatever they wanted, but if they were copying the particular motif in the colors etc. used by Mabel in Mabel's own knitted shirt, then there could be a problem.

Similarly, if Mabel made the original pattern on paper...but Betty went and made the shirt in a particular color and motif (different from Mabel's)...then she too would hold her own copyright for artistic craftsmanship in the shirt...

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[info]kathrynt
2007-02-08 05:49 pm UTC (link)
You should be aware that [info]a_u_n_t_i_e is a lawyer who has worked specifically in copyright law as it pertains to knitwear.

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[info]sbee
2007-02-08 05:54 pm UTC (link)
I am aware of that, actually.

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[info]kathrynt
2007-02-08 06:09 pm UTC (link)
Are you a lawyer? Because if you are arguing against a lawyer whose specialty is the subject at hand, you need a reason why your legal opinion trumps hers if you want to be taken seriously. I understand you've studied copyright law, but your interpretation of it differs radically from every authoritative source on the subject I've ever encountered.

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[info]sbee
2007-02-08 06:21 pm UTC (link)
Whoa! I haven't even been debating with the lawyer in this thread (a_u_n_t_i_e), much less claiming that my opinion trumps hers! She's yet to really say anything...(unless she posts under a different name?)

And no, I'm not a lawyer, and I don't really care if my opinion isn't taken seriously because of that. I'm not trying to offer legal advice in that capacity and rather am merely trying to reason through a potential scenario, just like everyone else has been.

I'm sorry though, I guess this is probably not the right forum for this kind of talk. I still stand by my original opinion to the poster of the thread though...I think her design is sufficiently different to hold it's own copyright...

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[info]kathrynt
2007-02-08 06:55 pm UTC (link)
Her statement on copyright has been linked extensively in the community, and she has posted saying that she disagrees with you. I agree that the OP's design is sufficiently different; I'm just trying to clarify the point that it is not OK to sell a work created from a knitting pattern unless the copyright owner has given you that right.

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[info]sparkymonster
2007-02-08 07:44 pm UTC (link)
[info]a_u_n_t_i_e also wrote this article for knitty which you appear to be arguing with.

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[info]a_u_n_t_i_e
2007-02-08 09:33 pm UTC (link)
I see a different argument. Here's the hypothetical (two parts; I'm commenting twice).

(Preface for everybody else who happens to read this: I'm not saying that this hypothetical, or the discussion of works of artistic craftsmanship, applies in the OP's particular situation. Also, I presume below that the underlying work of artistic craftsmanship created by Creator A is sufficiently "original", in the legal sense, so that copyright may subsist in that work. Arguably a work of artistic craftsmanship such as a plain ol' raglan sweater is a work of artistic craftsmanship, but not one protectable by copyright -- it would need more "originality" to merit copyright protection. Righto.)

Creator A creates a knitted item which is a work of artistic craftsmanship that is protected under the Copyright Act. She owns copyright in the work of artistic craftsmanship. Creator A also writes up the instructions for making the knitted item. She owns copyright in that, as well.

Creator B sees A's work, and develops her own version of the knitted item without reference to the pattern. She also writes up a pattern herself. Creator B owns copyright in the pattern she wrote.

Now, whether Creator B's version of the knitted item is an infringement of the copyright in the first work of artistic craftsmanship will depend not only on a quantitative, but also a qualitative analysis. If we assume that it is an infringing copy because it reproduces a substantial part of the original work, then distribution of B's pattern may constitute an authorization of infringement by others who make B's version of the knitted item, if the distribution of the pattern constituted an authorization. Because we are positing that A's knitted item is protected by copyright, we do not have the same situation as the Cuisenaire case.

Also, if B's version of the knitted item was an infringement of the copyright in the work of artistic craftsmanship of A, then production of B's version (by B) may also constitute an infringement. But it does not necessarily follow that B's pattern, written up by B, is an infringement. Had B also modified A's pattern in creating B's version of the knitted item, there may be an issue regarding copyright infringement in the pattern as well.

It seems that in your comment on works of artistic craftsmanship, you first start with the assumption that the pattern predates the knitted item. That is not necessarily true; the knitted item that is a work of artistic craftsmanship may be made first, and then the pattern to make the item may be written later. By starting out with the assumption that the pattern pre-exists any items made following the pattern, you seem to be working in an implied licence to reproduce the knitted item directed by the pattern, which is not a copyright matter, but a contractual one. I say this because in your first paragraph, above, you are describing Mabel's rights in her shirt made from the pattern vis a vis somebody else's rights in their shirt made from the same pattern, rather than the rights of the copyright owner in the pattern/first work of artistic craftsmanship giving rise to the pattern. In the second paragraph, Mabel created the original pattern, but you address the question of Betty's potential ownership of copyright, rather than Mabel's rights v. Betty's.

(Also, the hypothetical you described seems to draw a rather narrower definition of possible infringement than is warranted. After all, copying an original, copyrighted motif in different colours could still be an infringement.)

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[info]a_u_n_t_i_e
2007-02-08 09:34 pm UTC (link)
Going back to the original hypothetical that A owns copyright in the work of artistic craftsmanship, and A publishes a pattern so that others can make it, it follows that A must have given some kind of permission to others to reproduce the copyrighted work that is the work of artistic craftsmanship. But how much permission? This is where we get to the implied licence issue, since most knitting patterns are distributed with some kind of implied licence to the user (the "not for commerical use", etc. stuff); hence the earlier comments in this thread. What if there was a implied licence in place and it was enforceable? And what if that implied licence did not grant permission for what B did?

To reiterate, everybody else: I'm not saying whether any of the above applies, or doesn't apply, in this case, since I don't give legal advice on forums (i.e., telling people how the law applies to their particular situations). My point in raising this is that no answer to the age-old copyright question such as the one the OP posted is necessarily complete without an analysis about the underlying rights not only in the written pattern, but in the work of artistic craftsmanship that was developed by the author of the pattern--and their ownership, because hey, the copyright in each could be owned by different entities (by an assignment of rights from the first copyright owner), and what implied licence terms may be in force.

This presumes that copyright subsists in the underlying knitted item, whether it is characterized as a work of artistic craftsmanship or not, in the applicable jurisdiction. Your country may vary. Also, I wonder out loud how the European unregistered design right would affect knitting

I also want to point out that the answer given to the OP here was probably not based on a flat application of "the law". An assessment of copyright infringement is a highly factual matter and isn't carried out by simply reciting legalese, but involves a comparison of the works in question. I presume that in providing her answer, sbee carefully weighed the quantitative and qualitative aspects of the works in question in order to determine whether a substantial reproduction had been made.

The OP is welcome to take any opinion, legal or otherwise, that she wishes to take. Also, what debate?

... and also, in a parallel thread, I see that sbee also pointed out that recipes really are protected by copyright -- thank you, I get tired of that recipes-aren't-protected statement that comes up every so often -- and that she also mentioned the contractual issue. Note that laws can vary from jurisdiction to jurisdiction as to what action is necessary to make express contractual terms enforceable.

Also, I need to learn my LJ tags. And I wish the character limit for comments wasn't so small.

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[info]lissie930
2007-02-08 03:01 am UTC (link)
Really?
That would be so cool!
I've read that if a pattern is copyrighted, you are not allowed to sell the items you make from that pattern:
http://www.purplekittyyarns.com/info/copyright.html
(Yes, I know that's not a legal website).

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[info]sbee
2007-02-08 03:11 am UTC (link)
If the information on that website were correct (and I'm suggesting that it is not) then making food described in a recipe and then selling it at a bakesale would violate copyright law.

And there's no "if" a pattern is copyrighted...pretty much everything written down on paper is instantly copyrighted from the moment it's written down...but the way copyright law works is it compares apples with apples and oranges with oranges. Someone can perform a song written on paper by someone else, and it's not violating the musicians copyright in the written score...for another example.

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[info]msmcknittington
2007-02-08 04:47 am UTC (link)
Recipes are different than knitting patterns. Really. The US government has specific rules for recipes that do not apply to knitting patterns or other works. Basically, you can't copyright lists of ingredients, but you can copyright the accompanying directions/"literary expression."

Knitting patterns and their resultant products fall under visual arts.

Your analogy doesn't work in this situation.

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[info]sbee
2007-02-08 05:55 am UTC (link)
First of all, you've been awfully presumptive in assuming that US law is the only law relevant here...

Secondly, I don't find your argument in general to be very convincing.

Yes, the US statute you reference says that you can't copyright lists of ingredients (that's a given when you understand the theory behind copyright law). But no, it does not say that you automatically hold copyright in the accompanying directions, however. Rather, it says there "may be a basis for copyright protection" and only where they are "substantial literary expression." [Courts take words like "substantial" pretty seriously].

At any rate, suppose the instructions accompanying the ingredients are copyright-protected (which sure, they probably will be unless we're talking about generic chocolate chip cookies etc.). First of all, this isn't really invoking "special rules." [If you study copyright further, you'll see that these "special rules" are just a common principle applied to written works in general (you might only be able to copyright certain things in some works i.e. whitepages phone book)]. More importantly, it still does not follow from applying protection to the instructions that the resulting product of said instructions holds copyright protection too!!

Moreover, in copyright, "written works" and "artistic/visual works" are treated much the same way (under the same section in most acts, actually, under the term "traditional works.") As such, a written recipe and a written knitting pattern are treated much the same way.

As such, I maintain that the analogy I provided holds. The "special rule" for the recipe merely extends protection to the WRITTEN piece of paper with the instructions on it (and only those instructions, rather than the list of ingredients). It still does not provide copyright protection to the resulting baked good or salad or what have you.

Again, it is very much like a knitting pattern, which involves "ingredients" and then "instructions" and then a "resulting product." You could even argue that the so-called "special rules" apply to the knitting pattern (which, they certainly would)---you might be able to copyright the "instructions" in your knitting pattern but not "use size X needles and X yarn and knit to X tension."

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[info]emmacrew
2007-02-08 05:50 pm UTC (link)
Considering the person who *asked the question* is in Arizona, it's not that presumptive at all.

Many patterns, books and magazines include text like that quoted by here, pointing out that sale of items made from those patterns is not allowed. The original pattern in question thus has just such an agreement in place.

I strongly suggest you read The Girl From Auntie's site linked elsewhere, because she has worked in copyright law specifically as it applies to knitwear design and other crafts.

All that said, I would agree that it has been changed so much as to be almost unrelated to the inspiration item, but that it would be a classy touch to contact the original designer.

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[info]silver_spork
2007-02-08 12:15 pm UTC (link)
I'm not sure if that is an automatic with the copyright itself, but most patterns that state copyright normally have an additional statement about selling items made from that pattern.

From the knitty.com legal page

"Every pattern on the Knitty website is the property of the designer who created it and cannot be reproduced, except for one copy for an individual's personal use. If you print patterns from Knitty and sell them without the designer's permission, you are stealing.

Here is the text from our FAQ page that explains just what "free" means, in terms of Knitty's patterns:

Q. Knitty's patterns are free? Really?
A. Yes, they're free for your personal, individual use. You may print out a copy to work with. But you may not print out multiple copies, you may not reformat the pattern for commercial use, and you may not sell them or items made FROM Knitty patterns. The copyright for each pattern and article belongs to the designer or author. Any usage beyond what's mentioned here must be negotiated with the designer or author.

If you should see evidence of a violation of copyright, please let the designer know. Their e-mail address can be found at the bottom of their pattern. We appreciate your assistance.

Please respect the designers and authors whose work you see in this magazine. Violations of copyright are illegal and each designer has the authority to pursue violators to the full extent of the law."

Of course, this does not answer what is *required* if you modify a pattern. The only experience I have is when I wrote my Ph.D. thesis. If I even modified a figure/table, I was required by the university and the archiving service to show that I had gotten permission from the copyright owner.

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[info]onmytiptoes
2007-02-09 12:06 pm UTC (link)
Knitty specifically prohibits using the patterns to make items for sale. It's VERY clearly outlined in the FAQ. To be clear, there are not blanket assumptions with copyright- most places will explain the dos and don't explicitly.

Here is the link to the Knitty legal info.

And here's a quote, in case I screwed up the html- it is before 0700, so I'm not at my best.

"Q. Knitty's patterns are free? Really?
A. Yes, they're free for your personal, individual use. You may print out a copy to work with. But you may not print out multiple copies, you may not reformat the pattern for commercial use, and you may not sell them or items made FROM Knitty patterns. The copyright for each pattern and article belongs to the designer or author. Any usage beyond what's mentioned here must be negotiated with the designer or author."

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[info]sbee
2007-02-08 01:11 am UTC (link)
I've studied copyright law...

My personal opinion on this is that you HAVE changed the pattern enough to avoid problems. :)

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[info]poledradog
2007-02-08 01:13 am UTC (link)
Thanks!

(And yes, I took that with the implied "this statement is not to be substituted for professional legal councel" ;)

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[info]sbee
2007-02-08 01:16 am UTC (link)
LOL perfect! :)

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[info]alittlequacky
2007-02-08 02:44 am UTC (link)
I personally think you made enough changes. I feel if you aren't using their numbers (or words), but actually did the math, took the measurements, did the legwork, then it's yours. It's like looking at something in the store and making it at home, it may be the same visually, but you did not use their pattern to get the results, you just got inspiration.

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[info]pivyca
2007-02-08 03:11 am UTC (link)
Copyright does not protect ideas, only expressions of the ideas. So her pattern is copyrighted but her knitting concept is not. You could express the very same knitting idea in an original way and not violate copyright. In this case, it sounds like both your idea and your expression are different, so it shouldn't even be a concern. It might be nice to acknowledge the inspiration, but it shouldn't be necessary.

(Information from "Complete copyright : an everyday guide for librarians," by Carrie Russell.)

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[info]neefer_1
2007-02-08 03:25 am UTC (link)
Different creature all together... Almost everyone is inspired by something else. First off stitch amounts have to change since you are felting and her item is not felted. You have actually made a completely different material. You also made it closed for the bottom and for a water bottle, not a coffee cup. I wouldn't worry about about, if I looked at the two products next to each other I wouldn't even think that they were related. How many times has the glove or socks been reinvented?

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[info]kpup
2007-02-08 03:51 am UTC (link)
You've created your own pattern. The knitty pattern was your inspiration, and it is up to you whether you want to credit the person who wrote the knitty pattern.

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[info]darkenedminds
2007-02-08 04:19 am UTC (link)
Neato. I think its changed enough to be green, but its always good to check. If you do publish it, please do drop a line here, I'd love to check it out.

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[info]prncsscindy
2007-02-08 04:36 am UTC (link)
According to my knitting teacher, who writes her own patterns and even invented a knitting/crochet needle, if you change ANY thing, even if you use a different yarn, then it's technically not theirs anymore.

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[info]kathrynt
2007-02-08 05:17 pm UTC (link)
Your knitting teacher is wrong. See commentary above from [info]a_u_n_t_i_e, who is a bona fide copyright lawyer.

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[info]sbee
2007-02-08 06:23 pm UTC (link)
arggh! Am I missing the commentary from A_u_n_t_i_e?? because I'm not seeing anything she's posted about this....?

But yeah, at any rate, I would have to agree. You have to change more than something trivial, generally speaking, to make something sufficiently "original" to acquire copyright in that item. Changing the yarn is highly unlikely to do that.

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[info]haptotrope
2007-02-09 02:03 am UTC (link)
scroll up... its huge, but it threaded visually after you said you weren't debating with her.

part1
http://community.livejournal.com/knitting/8179698.html?thread=88882930#t88882930
part2
http://community.livejournal.com/knitting/8179698.html?thread=88883186#t88883186

tally ho!

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[info]prncsscindy
2007-02-08 07:59 pm UTC (link)
OK, I'm just glad no one sued me then.

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[info]piccadillycirc
2007-02-08 08:08 pm UTC (link)
You've probably changed enough anyway to be fine... but since it was a free pattern, I don't think you'd run into any problems saying "I used this pattern here, and changed this and this and this", as long as you are giving that advice out for free and giving due credit where it's deserved. Don't replicate the pattern, though...link to it, then specify where you made changes.

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[info]evandra
2007-02-08 08:43 pm UTC (link)
I remember hearing a rule-of-thumb that if your pattern is more than 15% different than whatever inspired you, it's yours. No citation available, sorry, but it sort of rules out the "just change the yarn" contention.

But anyway, yours is *very* different (way more than 15%!), and unique, and you should go for it! Write your own pattern from scratch - forget about the thing on knitty - and sell sell sell :)

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[info]counsel
2007-02-08 10:12 pm UTC (link)
That is a myth that continues to float around the internet (and other places) and has no legal grounding, to the best of my knowledge.

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[info]haptotrope
2007-02-09 02:10 am UTC (link)
You will not be the first person, or the last person to make a cup cozy, or a raglan sweater or anything without a very specific twist. Your thing is an entrely different shape, and holds different things, and is handled very differently (felted) this to me, means its all very different... several steps beyond 'different enough'

IMHNLO (in my humble non-lawyer opinion)

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