Copyright and reconstructions

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sally
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Copyright and reconstructions

Postby sally » Sat Feb 25, 2006 12:52 pm

Broad ethical question for all you costume gurus. If I were to go into a museum and deduce the pattern of an extant early garment by studying it in person, and then make a close replica of said garment and offer it for sale, who does the copyright of the pattern reside with?

Now lets complicate it further. If the garment has been well studied and commentries on it have been published, its an easy enough thing to properly reference the assistance of those papers in making the reconstruction, and its right and proper to do so. But does offering a reconstruction for sale, that uses in part (but not entirely, as the bulk of the pattern is worked out by examining the extant garment) the information within that academic article in any way infringe the copyright of the article author?

What then, to triply complicate things, if I wanted to publish a pattern for that garment, based on my work but properly referencing the previous articles as a source of useful information. Do I need permission from the museum that holds the garment?

Fourth factor- what if another researcher has done exactly the same thing, seperately and under their own steam. If the research is independant and properly cites the assistance of the published sources and the location of the original garment, is anyone tripping over any legal toes?

Just one of those questions that pops into your mind on a saturday morning :D Would welcome any insights.



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Postby Kate Tiler » Sat Feb 25, 2006 2:25 pm

Crikey! Sally you like to get our heads working!

I should think the person to ask would be Ninya of the Tudor Tailor book due out soon - she must have gone through all of the steps you mentioned.

Isn't it like we were told in college - one source is plagiarism, two or more is research?!

Sounds interesting though & I'm waiting to see the sensible answers!


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Postby mally ley » Sat Feb 25, 2006 3:34 pm

Sally
this is one of those things that has briefly flitted through my mind and then been pushed out quickly when my head started to hurt :? As I don't sell any of the stuff I make (a couple of bits bartered, but that probably doesn't add up to double figures) I haven't felt the need to worry about it too much.
This isn't an answer, more like random thoughts ...
This applies to more than just knitted stuff. All the people out there making costume for sale are probably using many different sources. Some taking straight from a Janet Arnold or Tailor's Assistant type books, some adapting them, using techniques that work for them, some will also have seen originals.
I have seen notes on costume, including quite details construction and style notes, for at least 3 different groups. Of course, these are given to group members and not necessarily paid for directly by the people who use them.
After 20 odd years I couldn't tell you where any of my construction techniques come from having started knitting and sewing at junior school. I just now know what works for me. Styles can come from a variety of sources - contemporary paintings or notes etc, non-contemporary paintings/descriptions etc, seeing what others who re-enact your period are wearing.
About 10 years ago TJ examined statute hats at the V&A, she talked to me about them and showed me a couple she'd knitted based on what she'd seen. I've knitted a couple, and some of the acorn style ones. Once I wrote down some notes for a friend to have a go. I now own a copy of Richard Rutt's book, but borrowed it from the library at different stages over the past 10+ years. I have printed out various bits from the internet. If I started selling knitted hats or stockings and someone challenged me about my sources, breaches of copyright, I wouldn't be able to prove a thing about where I first got some information from or when I started using this technique or that style.

All this is so much rambling. On a more constructive note, maybe you could try contacting some of the people who offer paper patterns for sale. J P Ryan? is the only one that comes to mind, and I've a hazy notion most of them seem to be American - all the stuff published on the web by SCA people just adds to the confusion.

Maybe you could follow the links on the stocking pattern that was posted here a couple of days ago - she has put a © symbol at the end of the pattern - there is a contact email address.

As I say, all very rambling, hope some of it helps rather than just muddying the waters still further.



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Postby Mary Craig » Sat Feb 25, 2006 4:23 pm

I know about copyright from a mapping point of view....if you copy directly from another map it's not yours. However, if you draw your own map but use salient features and positionings from several maps and sources and the actual lines drawn are your own work, then it's yours and your copyright.

I reckon that if you have researched a garment or garment style or pattern, and drawn your own interpretation or pattern from whatever sources you like, then that interpretation or pattern is yours. I think it's also quite alright to claim that it is in the style of .......? Like all those Emmanuelle rip off wedding gowns after Diana's, kind of thing. The pattern cutters were busy before the ring was on her hand and they had left St. Paul's :)

It is considered courteous to give acknowledgements to specific refernces that you may have used, but that's it really.

I've used your medieval underwear patterns, they just work; and I don't think of 'them' as rip off anyone else's, they're Sally's.

Cheers,
Mary



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Postby sally » Sat Feb 25, 2006 4:52 pm

Its an interesting one isnt it. If it was purely a text exercise there are quite clear guidelines as to what is acceptable and what isn't, and where research that cites the previous work of others becomes new and when it becomes plagiarism, but adding in a physical reconstruction seems to add a facet that can be confusing.
My own gut feeling is that if you can show you deduced your pattern yourself, either from a combination of referenced documentary sources or by direct reference to an extant item, then it shouldnt matter how many others have done the same thing, its still legitimately your work.



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Postby Mary Craig » Sat Feb 25, 2006 5:02 pm

I think your definition hits it on the head, Sally.
Everybody's interpretation of a pattern is different too, even when they are working from the same original item.

Cheers,
Mary



Wayland2002

Postby Wayland2002 » Sun Feb 26, 2006 3:23 pm

Hello Sally

I've forwarded this question to a friend of mine thats a patents attorney. I'll post the answer when I get it.



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Postby frances » Mon Feb 27, 2006 12:13 am

Dear Sally, umm, this might be a bit obvious, but why not ask the museum itself. For if anyone is likely to object it would be them. Museum garments are pictured in so many books that they must have a policy worked out by now.

I would think that if you worked out your own pattern then that is your pattern, which you could then copyright. Many articles, books and patterns have a 'further reading' and a bibliography section so those interested can do further research and I know of noone who would object to their works being cited.

Noone is allowed by copyright law to make a direct enlargement of Janet Arnold or Jean Hunniset's patterns then sell them as their own. But if you went back to the garments and made your own patterns, which would obviously have some similarities to these authors' work, then that would not be breaking copyright. You could prove that the work was all yours.

Of course, I am now wondering what you have in mind to be doing next!!



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Postby sally » Mon Feb 27, 2006 1:24 am

frances wrote:Of course, I am now wondering what you have in mind to be doing next!![/color]


It was just a general pondering, (what I'm supposed to be working on is my history of soap book, so naturally I'm far more interested in just about anything else at the moment), and the legal ethics of costme research just got lodged in my mind as a distraction! :D



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Postby m300572 » Mon Feb 27, 2006 12:06 pm

If you make up a garment, based on the publications of other people then the garment is yours (if you can copyright an article of clothing) as the interpretation of the patterns etc are yours. if you were to publish an account of the making of the garment and did not acknowledge the original publications then you would probably be guilty of plagiarism (academic theft).

Where it may get interesting is if you used (say) an Arnold pattern to make up a garment but altered it to fit you (I assume you are not identical in shape to the various cadavers that Arnold got a lot of her examples from :shock: ), then produced a pattern from the garment for sale. Possibly the use of the phrase frequently found in academic text books 'after So and So' when a piece of work by So and So has been redrawn would cover you.



Wayland2002

Postby Wayland2002 » Tue Feb 28, 2006 6:14 pm

Hello all

I've got a reply back from my tame patent attorney. here goes:

"> "Broad ethical question for all you costume gurus. If I were to go into a
> museum and deduce the pattern of an extant early garment by studying it in
> person, and then make a close replica of said garment and offer it for sale,
> who does the copyright of the pattern reside with?

If you simply copied what was there, then the work you've done is not
original and so there is no copyright (assuming that the original
pattern is out of copyright - one assumes the original artist has been
dead more than 70 years). If you had to make some of the pattern up -
you created some details of the pattern - then you would have the
copyright (or your employer, if you were employed to do things like
this). Similar rules apply to the design right inherent in the shape
of such a garment.

> Now lets complicate it further. If the garment has been well studied and
> commentries on it have been published, its an easy enough thing to properly
> reference the assistance of those papers in making the reconstruction, and
> its right and proper to do so. But does offering a reconstruction for sale,
> that uses in part (but not entirely, as the bulk of the pattern is worked
> out by examining the extant garment) the information within that academic
> article in any way infringe the copyright of the article author?

The answer depends on broadly the same idea. If the end result was
merely a slavish copy of the original, then there is no copyright and
so there is no problem. If the authors of the commentries invented
details of the pattern and you used their details, you could be
infringing their copyright.

> What then, to triply complicate things, if I wanted to publish a pattern for
> that garment, based on my work but properly referencing the previous
> articles as a source of useful information. Do I need permission from the
> museum that holds the garment?

Not as far as copyright is concerned, as long as the original artist
has been dead for 70 years. There may be contractual implications...

> Fourth factor- what if another researcher has done exactly the same thing,
> seperately and under their own steam. If the research is independant and
> properly cites the assistance of the published sources and the location of
> the original garment, is anyone tripping over any legal toes?

If anyone uses the original work of someone else, there could be
copyright issues. However, if they independently came up with the
same pattern, there is no problem.

> Just one of those questions that pops into your mind on a saturday morning
> Would welcome any insights. "

If this is a real query, your friendly patent attorney may well be
your friend..."

Hope that answers everyones questions



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Postby Shadowcat » Tue Feb 28, 2006 7:14 pm

Incidentally, from my experience with one museum, (the Museum of London) if a museum allows you to take a pattern from an extant garment, for your own research, including pictures and measurements, this research is yours. However, if you wish to publish the research, you have to ask the Museum of London for permission, and also, probably, pay a fee - I haven't got to that stage yet so I don't know about this bit. This is all implicit in the document you sign, whih gives you permission to use the garment(s) and any photos for personal research only.

I believe the V and A has the same policy, as I had to sign a disclaimer there too. I think that each museum will have its own policy, and you would be advised of this when doing the research, if the garments were taken from the museum's collection for you. It probably does not apply if you deduce the pattern by sticking your nose to the glass, and peering for ages.

Disclaimer - this is only my experience with two museums. Other rules may apply.



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Postby sally » Tue Feb 28, 2006 7:59 pm

This has been fascinating, and the comments from the patent attourney above suppoorted what I felt was the case. Thanks everyone for the discussion, its not about any one thing in particular, just a sum total of a few ideas and discussions I'd had with people recently and its very welcome to get wider opinions on it :D



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Postby Tuppence » Fri Mar 03, 2006 3:15 am

DAmn - one I knew the answer to, and it's already been answered.

bloody re-enacters market (mutter, mutter).

as an extra bit of info - the reason I already knew was that I checked it out with the patent office a while back.

they're v helpful people (unlike certain other places) - they got back to me within 24 hours every time I mailed them, with endless historical costume related questions.


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Copyright

Postby Neibelungen » Tue Mar 14, 2006 5:01 am

It raises an interesting question as where copyright actually exists when working from an original from a museum.

I did a lot of reading my self and asking a few lawer friends, and they gave me a number of different answers all based on interpretation of the laws. It's worth reading the Copyright and Patents Act 1988 (ammended)which is abridged online , as well as the govt's Itellectual Property site I can't find the address to hand.

The current laws stands that there is a diference between copyright and design right http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880048_en_1.htm
http://www.intellectual-property.gov.uk/resources/copyright/index.htm
(generally the latter being a vague boundary on commercial manufacturing).
The current law stands that copyright exists for 70 years after the death of the owner of the copyright. Design right is 10-15 years. Or from the date that an item is first published or made public (this is what the museums base their claims on)

Now the big question comes whether there is a commercial aspect, an artistic aspect or a intellectual aspect. The general rule is if you create something new and/or unique you have copyright. However, what isn't copyrighted is the source of that information, if you draw on information available and effectively colate that into something new. It means somebody can equally take the same sources/information/inspiration and make their own original and claim copyright.

This effectively means (in the same way of a book) you can read it and use the evidence, but you can't copy the wording. Your allowed to quote but not to photocopy. However since every costume is unique your not mechanically copying an item, you are creating a unique item from sources using your own creativity and skills. There is an element of design right, but this is difficult to prove and places the item into a commercial setting which changes the rules slightly. What it does mean is that nobody could send your dress or item to somebody else and for them to make a direct copy (in the way of a photocopy) of it. As an example they couldn't take the dress appart and make a pattern from the pieces, though this is exremely difficult to be able to prove. It's easier to substatiate with a metal item if it's been copied directly.

This leads to a second point of importance and a change to the law. Unless you work for a company as a salaried employee, a commission item does not give the copyright to the person placing the comission. This is a vital change. The copyright exists as a seperate entity in itself and belongs to the creater/manufacturer/dressmaker of the work. The law stands that unless explicitely stated in a contract, the copyright remains with the creater. Though an original design may mean that the design right and some degree of copyright exists individually or jointly with the commisioning person. However, unless they have a valid claim to the copyright of the design, they can't claim futher copyright/design right.

A few museums (notably the NMM) claim copyright on everything and even want to own copyright on things you make from researching their artifacts. They base this on primarily the claim of copyright from date of first publishing. ie 50 years or 70 years depending on the type of souce material. They also back this up by making you sign a disclaimer , which usually explicitely states you asigning your copyright back to the museum.
It's a very grey legal area, as many items are past the 70 year rule and hence the museum doesn't have copyright either to begin with. Secondly, some items. eg medals or badges, are commercially manufactured and fall into different set of rules. Just be aware... if the 70 year rule does apply and you sign a waiver, they can call the shots as they have the source information and control that. Something being on display dosn't make it public domain. Nor does the museum always hold the copyright for items in their collection. Many items are loans or donations.

Pheww... hope that's clarified a few things... basically what you create with your own hand is your copyright item... but the information isn't your copyright. (unless you actually first publish it and it's never been seens before)

Which leads to the mirkiest area of all... using an original item as a direct pattern.
In theory you cannot claim any copyright because you copied something. and since you had no copyright to the original you have no further copyright. Although... if you dug it up, you have some claim under the first publishing rules. But.. since many existing items extremely similar might also exist, the first publishing rule gets very shaky. Unless you can prove it's entirely unique and has never been seen before in any closely related form. And.. with much metal detecting, unless you have explicite contract, the landowner, or first seller/ digger/ nighthawk can make equal claims.

Hope that's covered a few things and muddied even more with confusion. Copyright law is a patchwork of amendments, bodged together peices and woefully dated.

In the end.. you own the copyright on the roman helmet you made, but not on the roman helmet. And if you understand that, you've got a clearer understanding of where copyright law stands.



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Postby agesofelegance » Tue Mar 21, 2006 9:10 pm

To second Andrew's post
We did a couple of Nelson uniforms last year for a client and when we asked to ahev a look at the orignial in the NMM we were told we could only if I signed a form saying I would make no more than 5 of these ever and we would ahev to pay a commisson to them on each one.
As I've already made more than that in my working life just by looking at the dummy in the case down there and only wanted to get a proper look because this was a very prestigious job, with teh client having given a sizable donation to the NMM anyway to fund their nelson and napoleon exhibition so wanted to get everything down to the last stitch exact, needless to say I didn't bother.
I've not come across any other museum doing this but hopefully it's not going to be a trend
dawn



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Postby Kate Tiler » Tue Mar 21, 2006 11:41 pm

This makes me realise that I've been very fortunate with the museums that I have worked with to make replica tiles for their handling collections. When costing a job like that, I always give two options - they can pay me for the time it takes to design & carve the pattern block based on one of their tiles, I would make the copies & then they keep the lot (expensive option) or I will carve a block & make as many tiles from it as they want, with no minimum order quantity, provided I can continue to make my own copies from then on and I keep the block. (much cheaper for them)

They are much happier to just pay for the three or four tiles that they want at the time, with the option to come back & order more, noone has ever placed any restrictions on me and they have often given me photographs of additional tiles just for my own use.

Perhaps this is a recent development in signing away rights? Maybe we have even contributed to the adoption of these restrictions by the very success of our businesses?! They want a slice of the pie?


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Postby Neibelungen » Wed Mar 22, 2006 2:44 am

Kate,

You hit the nail on head with your two options in regard to how copyright can work .

In your first instance, where you charge extra and give the museum exclusivity. while not exactly explicit, you are giving your copyright to the museum. It means the design is exclusive to the museum and they can control who uses that pattern/design. It may well be wise to think about refining a set of terms for this, as the museum could stop (though probably not likely) you from ever making a pattern to that design again, or give the tile to somebody else to produce for them in large quantities. It's that aspect that might cause you the most grief.

This kind of approach is similar to the way portrait painters work., although they tend to define the terms a little more precisely. Even though the commisioner of the painting may own the painting, unless they purchase the copyright, it still belongs to the painter. Therefore the painter can set terms for how prints could be made from it, if photographs could be taken and published.

Your second case is often the standard one, where you have retained copyright on your work. In this case you can set all the rules to the museum as they are simply a customer among many for that particular design.


It's gets complicated and interesting when the museum gives you fragment of original to make a complete one for them. It creates a number of different senarios.

Firstly, the museum may have copyright on the tile. (either from discovering/publishing it for the first time). Therefore, though you have a limited copyright to stop them duplicating your tile through a direct mould from it, they can also stop you producing more from the mould/pattern you used to make the one for them. Their copyright might even extend far enough to be able to encompase the design on it too.

Secondly, the museum doesn't have any copyright to the tile (ie, it was published over 70 years ago or the owner of the tile is dead for more than 70 years etc). In this case you have a partial copyright to your work, though not to the design on it In this case, even if you sold exclusive rights to the museum for the tile, they wouldn't actually have any. You can't have more copyright to something you purchase/sell than exists in the object itself. They might be able to buy your level of rights, but that can be no more than exists in the object in the first place, and as the museum had none, none follows. There is a slight diference if only a partial fragment exists and you complete the rest, but generally this isn't much.

Thirdly. it's only a fragment with no museum copyright. Here it becomes a little easier. As you've created a new work, copyright exists with you, and is yours to sell/assign as you wish. However the design/shape/appearance may not be exclusive or determined, as this falls into that murky void where designer label/fasioin show rip-offs live. It's one of the reasons why Guicci put a Guicci label on there stuff. It might look like a Guicci bag, but if you've copied the Guicci badge as well then you've broken the law on copyright.

It might well pay for you to incorporate a subtle element into the design to make it unique or to include a unique logo hidden away in the design to help protect your copyright. This will help you lay claim to the design as well as the work. An empossed makers mark on the rear would be a good idea too.


It might be worth noting too, that a photograph of your object has it's own copyright too, as an independent thing in itself. If the museum was to make postcards of your tile to sell, unless they have a right to take the pictures, they have infringed your copyright. However, that dosn't give you the rights to the pictures they took, as that lies with the photographer. Strangely enough, if they photographed it with several other tiles it wouldn't be, as this falls somewhat along the lines of quoteing somebody from a book.

I hope this helps to clarify how copywrite can work, and Kate's example shows a few ways it happens in a real world setting.

As Salvador Dali said , "Good artists don't copy, they steal'



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Postby Kate Tiler » Wed Mar 22, 2006 6:53 am

I always start at a thousand pounds for option one...doesn't seem to be a popular option for some reason :wink:


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Postby Neibelungen » Wed Mar 22, 2006 11:48 am

Kate,

Actually that's not entirely an unrealistic figure for selling a copyright exclusively.

I'm not sure how it works with moulds for tilemakeing, but in my line (metalwork/silversmithing) a rubber mould could easily have a life time of 100 waxes, if not 500 with care. If I made £2.50 profit on each casting it gives the mould a value of between £250 and £1250. and that's not even counting the fact that they can make as many moulds from the original as they like.

I wonder how many of you would have thought of it in that sense ? I'd personally be very miffed if I'd sold the rights aweay and then found that an order for 10,000 units had been made with some other company using my work.

I made all the headdress metalwork fittings for Queen Amidala for the first of the new Star Wars films. I had a three page legal document to sign before I could even start. I wonder just how much that would have been worth ?



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Postby agesofelegance » Wed Mar 22, 2006 11:55 am

not to mention when you were phoned by a special effects company to find out how much it would cost to make them some buttons for Hornblower and discovered it was your button they would be sending you to copy!!!!!!! :evil:
Be very careful where films are concerened folks the companies only exist during the length of production in most cases, if you don't find out until later there is no one to have redress with :-(
dawn



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Postby Kate Tiler » Wed Mar 22, 2006 12:34 pm

Yes I wasn't joking for price of the tile block! If I got them to sign an agreement saying they would not use it for producing tiles but only as a display item I would charge nearer the £450 mark, but if it could potentially be used to make tiles then yes, £1000 is more realistic.

I did even suggest to one museum that I produce a 'half carved' block for a display, one that was sketched out and part carved, which would obviously not be able to be used to produce tiles but which would actually convey a lot about the making process, but they didn't have the room for a permanent display, so I just lent them the blocks I'd carved to produced their handling collection and some photographs of me carving them.

For the project that I'm working on at the moment for Newark Hospital I put the following paragraph in:

"Ownership of the works produced for the Hospital shall be transferred to the Hospital on final payment of the artist’s fee.
Copyright and reproduction rights of artist’s work shall at all times remain the property of the artist, however the Hospital is permitted to use images of the artist’s work in any publicity material produced in order to promote the Hospital and the Women’s Unit.

The Hospital agree that no changes are made to the work or its immediate context, or decommissioning undertaken, without the consent of the artist."

This is because I know that potentially if they had a clued up marketing manager in place they could photograph sections of my tiled mural & sell postcards of it as a fund-raiser for the hospital Friends group. Any further use of the work other than the intial one it was commissioned for and it is a whole new contract.


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Postby gregory23b » Wed Mar 22, 2006 12:54 pm

I think Kate's figure is right as are any blocks moulds etc, some of my bigger blocks have taken two weeks to finish. Some smaller ones (less detailed) a few hours or a day.

Someone did ask how much a big block would cost and I stabbed in the dark at a rather large figure and he wasn't surprised, didn't go for it mind.

I see that I will need to consult with people like Neibel and Kate re commission work - for prints esp as some new info has come up on this thread.


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Postby PaulMurphy » Tue Mar 28, 2006 11:37 am

Moved to the Traders forum as requested.


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