Copyright for Costumers

[labricoleuse]

I'm knee deep in tech rehearsals on the two Shakespeare repertory shows right now, so today i've got a fortuitous guest post by my friend Trystan, who works as a writer/editor at Yahoo! by day and a historical costumer by nights-and-weekends. She originally wrote this piece aimed at an audience of reenactment costumers and bloggers who write about costume in general (from historical to modern cinema costume analysis). I knew when i read it that it'd be a great post for La Bricoleuse as well, since much of Trystan's information is also applicable to those working in costume production for theatre and film as well, particularly in terms of developing a digital portfolio or publishing about one's processes.

An Introduction to Copyright for Bloggers, Especially Costume Bloggers

By Trystan L. Bass

Notes and Caveats: This is written based on my nearly 20 years of professional experience writing and editing on the Web. For the last decade, I've been an editor in the central editorial department of Yahoo!, and before that, I worked in similar capacities at a digital music startup and an alternative newspaper. Dealing with copyright issues has been an important part of my career. However, I am not a lawyer, and nothing I say here should be construed as legal advice. Nor does this article necessarily reflect the views of my employer, past or present. But I will try to cite my sources while providing an overview of the most important information bloggers need to know about copyright. Note also that I'll be addressing issues of United States copyright law, because international regulations are outside my experience.

Here are the three most common myths about copyright, as noted in the Yahoo! Styleguide and seen all over the Internet:

• The work is online, it's public, so I can copy it and use it however I like.


• I can make a copy of any work I want to, as long as I provide credit to the work's creator.


• If I don't see a copyright notice or © symbol, the work is in the public domain.

None of these are true! Read more to get the facts about copyright.

1. What is copyright?

Dictionary definition: "The legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work."

Legal definition from the U.S. Copyright Office (PDF): "A form of protection provided by the laws of the United States to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works."

Trystan's definition: "I created it, so I own it, and you can't copy it without asking me for permission first."

Copyright serves to protect creators from having their stuff copied without permission. Who is a creator? Anyone can be. If you write, photograph, draw, paint, sing, design, sketch, sculpt, or otherwise make an original item, you may well be a creator covered by copyright. If you made it yourself, you are the copyright owner.

It can get tricky if the copyright owner is long dead. Who owns that copyright? It could be the creator's descendants, it could be a museum or library that owns the creator's items, it could be another creator who photographed or recorded the original work. It could be someone else entirely. You may have to ask to find out. Sometimes the item is so old that it's in the public domain, and then anyone can use that work without permission. But fewer things are in public domain than you think.

2. Why does copyright matter?

Because nobody enjoys getting ripped off! You wouldn't like it if some bitch used a photo of you in your amazing, perfect, gorgeous costume and said that was her and she made the whole thing, in 6 days and for $6 dollars, would you? No. Well, you'd be the bitch if others found out you used their images without permission.

No, it doesn't matter if "someone else" is a big, faceless museum or university or business. We like museums and universities and even businesses! They work hard to assemble fantastic online resources for us. They're doing a decent job, and that's worth a little respect.

3. What kind of stuff is covered by copyright?

Tons. In the U.S., copyright law protects "original works of authorship" and lists these broad categories of works as copyrightable:

• Literary works (meaning most anything written)


• Musical works and lyrics


• Dramatic works, including music


• Pantomimes and choreographic works


• Pictorial, graphic, and sculptural works (includes most any photos or drawings)


• Motion pictures and other audiovisual works


• Sound recordings


• Architectural works and plans

Also, these works must be "fixed in a tangible form of expression." Meaning, there must be some written or recorded version of it. Pix or it didn't happen, as they say.

4. What isn't copyright-able?

You can't copyright vague stuff like ideas and concepts. You can't copyright basic things like procedures, processes, or instructions. So you couldn't copyright a sewing technique, but you could copyright a video you made of a sewing technique. Of course, if people watch that video and use the sewing technique, their use of the technique you demonstrated is not a copyright violation (but really people, give props to others for teaching you how to do something -- that's good manners!).

Utilitarian items can't be copyrighted. This includes stuff like as furniture, cars, household appliances, dinnerware, lamps, and clothing. Designs printed on these things or special features about these items might be copyrightable, if they can exist separately from the original item. You could copyright a fabric pattern, but not a dress. You could even copyright a photo of a dress, but not that dress. See #11 for more.

Also, names (whether band names or domain names), titles (including titles of books or movies), slogans (a la "Just do it"), and logos can't be copyrighted -- they can be trademarked, however, and that's a whole different kettle of fish.

Interestingly, typeface designs can't be copyrighted. Which is probably why we see so many wanna-be versions of popular movie, cartoon, and even branded fonts free for download.

5. Can I copyright my own stuff?

Yes, and if you've written a blog post, taken a photo of your costume, sketched a drawing of a gown in a museum, then *ta-da* you may have created a copyrighted item. Go you!

You don't have to register your work with the U.S. Copyright Office to "earn" a copyright. Anything you create is copyrighted to you immediately upon creation. Only if you think you'll need to defend your copyright in court (and want to earn damages from violators) would you need to register your copyrighted works first.

There is no requirement that you put a copyright notice on your copyrighted works. As I said, you automatically have a copyright. You don't have to put "copyright Trystan L. Bass 1999-2051 ©" or anything else on your blog or next to your all your photos.

However, adding copyright info is a nice little reminder to the thieves in the world that, yo, this is my stuff. Don't copy it, jerkface. The simplest form, which is recommended by the U.S. Copyright Office, is "© 2012 Trystan L. Bass."

Of course, you will find that many works out there are not registered and carry no copyright notice, but they are absolutely copyrighted. Just because a person can't sue you doesn't mean you're not a rotten person earning horrible karma if you steal their unregistered copyrighted works (generic "you," of course :-).

6. What is "public domain"?

A work that goes out of copyright goes into the "public domain." This typically happens at some point soon after the work's creator has died (the specific length of time varies depending on when and where the work was created, thanks to variations in copyright law), but sometimes a creator's estate or publisher could hold the copyright for longer (for example, the song "Happy Birthday to You"). Also, institutions might hold copyright to specific copies of works or the publication of those works. So it can be difficult to know what is truly in the public domain.

Generally, if the work was published in the U.S. before 1923 or published outside the U.S. before 1909, it's in the public domain. There are a few exceptions, but most works that are over 120 years old may be public domain For example, the works of William Shakespeare or Mozart and most pre-20th-century art are all public domain.

Derivative works of public domain works may be copyright, however. So movies such as "Shakespeare in Love" and "Amadeus" or art like Andy Warhol's version of the Mona Lisa can be copyrighted. Also, modern translations or new publications of ancient works may be copyrighted, even if the original item has long been in the public domain.

Sometimes access to public domain works is restricted -- Michelangelo's Sistine Chapel frescos are in the public domain, but the building is private property and the Vatican controls access. Photography is forbidden inside, so high-quality images have to be purchased from Vatican-approved publishers. Many museums operate this way to protect their investment in the artworks (see #9). This may seem sucky, but it's legal.

7. Isn't stuff online free to copy?

No, absolutely not! People might as well steal books from a public library. Someone had to pay for every single webpage you see on the Internet, and someone created every piece of text and every image you see online. Whether it's a costume photo on Facebook or a fashion plate on a museum website, all of them may well be copyrighted by somebody. So find out who owns it, and ask permission. Don't assume -- it makes an "ass" out of "u" and "me" (get it?).

8. Isn't it "fair use" to copy stuff, especially if I'm doing it for educational purposes?

The legal concept of "fair use" is both stricter and yet grayer than people realize. It's very easy to get in trouble copying for fair use, so don't let that become an excuse for using without permission.

The Copyright Act of 1976 has detailed criteria for determining fair use, which can frankly be contradictory, and cases have been decided in seemingly opposing ways. But it's important to remember that there is no specific amount of a work (no letter count or time limit or amount that has to be changed) that can be used without permission. And crediting the source is no legal substitute for getting permission either.

9. What about stuff in museums and on museum websites -- what's copyrighted?

Museums might not own the copyright to their holdings; it depends on the specific item and the museum. Modern artwork may still be under copyright of the original artist, for example. But earlier artwork may be in the public domain (see #6).

Of course, museums do hold the copyright on their own websites -- after all, they are the ones creating and maintaining them. So you don't want to go crazy copying from their sites, and you definitely want to give credit when you use a museum for your research.

But can you use images from a museum's website? Well … the Wikimedia Foundation cites the 1999 case of Bridgeman Art Library v. Corel Corp. as the basis for its usage of photos of public domain art throughout the wiki. This case ruled that exact photographic copies of public domain art couldn't be copyrighted in and of themselves because they lack originality. Copyrighted material must be original, and an exact photo isn't. So, since exact photos of public domain art aren't copyrightable, these types of photos on a museum's website are not copyrighted. If the museum hasn't added text or otherwise altered the image, you're probably safe copying and reposting it.

Note that this would only apply to artwork, not displays such as clothing on a mannequin. The later is not an exact copy of public domain art. An item in a display case was carefully arranged and designed by the museum -- it's essentially an original piece of art. And a photo of a dress is an original artwork in and of itself (see #3). So the museum owns the copyright to that photo, and unless you have permission, you can't reproduce it.

As for taking photographs inside the museum, policies vary wildly from museum to museum. The blog Musematic has an insightful discussion about the topic from an insider's perspective. While paintings from, say, the 17th century may be in the public domain, museums believe they have the right to protect these images and even profit from them. At the very least, museums will require you to turn off the flash on your camera because this can damage items. If you are allowed to take photos, then you own the copyright to those images.

10. Can I scan pictures in books and put them online?

Scanning an artist's original artwork and putting that online would be the equivalent of ripping a musician's CD and uploading it to a peer-to-peer network so the world could download it (anyone remember the original Napster?). Don't go there. You would be illegally distributing someone else's copyrighted work.

However, scanning artwork that is clearly in the public domain is less problematic. If you are absolutely sure the art is in the public domain and the book's version of the artwork does not deviate from the original (for example, the author has not added an arrow pointing to a costume detail), then you're probably within rights to copy it and republish. See #9 for the Bridgeman Art Library v. Corell Corp. case about photos of public domain art.

If you have a book with an exact, unaltered photo of public domain art, scanning that and reproducing it is conceivably yet another exact copy, and thus not a copyright violation. Yay, something you can do!

11. Can I copyright my costumes?

Sorry, but costumes (and in fact, all clothing) are not subject to copyright. Remember how "utilitarian items" are not copyrightable in #4? Well, that's how the fashion industry survives with countless cheap, legal knock-offs of expensive brands at stores like Forever 21 and H&M. Designers can't copyright their clothing. No matter how ridiculous it looks, all clothing is considered utilitarian under the law. Same goes for costumes.

According to the U.S. Copyright Office Policy Decision, filed November 4, 1991, in the Federal Register (PDF): "Costumes will be treated as useful articles and will be registerable only upon a finding of separable artistic authorship." Furthermore: "The Copyright Office has generally refused to register claims to copyright the three-dimensional aspect of clothing or costume design on the ground that articles of clothing and costume are useful articles that ordinarily contain no artistic authorship separable from their overall utilitarian shape." Basically, if it still looks like a piece of clothing, it's not a separate piece of unique art that can be copyrighted. Whatevs.

And: "Garment designs (excluding separately identifiable pictorial representations of designs imposed upon the garment) will not be registered even if they contain ornamental features or are intended to be used as historical or period dress. Fanciful costumes will be treated as useful articles and will be registered only upon a finding of separately identifiable pictorial and/or sculptural authorship."

This reiterates previous statements that you can copyright a print or pattern (the "separately identifiable pictorial representations of designs imposed upon the garment") such as a fabric design, but not the garment itself.

The Copyright Office reiterates in this decision: "For purposes of copyright registration, fanciful costumes will be treated as useful articles. Costumes serve a dual purpose of clothing the body and portraying their appearance. Since clothing the body serves as a useful function, costumes fall within the literal definition of useful article."

Multiple court cases involving creators of Halloween costumes have denied the availability of copyright protection to costumes, for example, Whimsicality, Inc., v. Rubie's Costume Co. Inc., 1989, and Chosun Intl., Inc. v. Chrisha Creations, 2005. If mascot-style animal costumes like those described in these cases can't be copyrighted, your recreation of a 1776 French polonaise won't be either.

That said, don't be a copy-cat and make the same outfits as other costumers. It's not illegal, but it's pretty lame. Do you really want to be the Forever 21 of costumers? Nah, didn't think so.

12. What about posting movie screencaps and fandom type stuff?

A movie (or TV show) is copyrighted by the studio that produced it. Sorry, but you really shouldn't copy their work, even if in still image form. If you're writing a movie review, a small screencap is usually permissible under fair use (yes, that's an acceptable case, see #8), especially if it's from the film's preview. But loading tons of screencaps on your website isn't a great idea. Yeah, it's really handy to research a costume, but keep the pix on your hard drive for personal use.

Creating derivative items based on copyrighted media is a huge grey area that gets some fans in trouble. While it's not the most legal thing to do, some copyright holders are fussier about than others. For example, these fans were giving away Doctor Who-themed knitting patterns and got in trouble with the BBC. After drawing negative attention to the Beeb in the press, the fans won a reprieve. It all depends on what you're doing, if you're selling it or giving it away, how high profile you are, and what specific fandom you're involved in. Be careful out there!

14. What about Creative Commons?

This is a newer form of licensing, based on copyright, and intended mostly for online works. Anything that can be copyrighted (see #3) can be licensed under Creative Commons (CC). The main goal of CC licenses is to allow creators to maintain their copyright while also giving others access to certain uses of their works.

So if you see something with a CC license on it, read the details (because each flavor of CC license has different restrictions), and find out how you can use that work. You may be able to copy it for personal use or you may be able to republish it or you may be able to edit/remix it into a new work. The CC license gives you permission to do this stuff in advance. You don't have to ask. Just read the fine print. Kinda cool.

The main places you'll find CC work right now is Flickr and Wikimedia, but some bloggers are starting to use CC for their own works.

Note: This article is licensed under Creative Commons Attribution 3.0, meaning you are free to repost the entire contents if you credit me and you don't make any changes to the article.

15. How should I give credit to a copyright holder?

Once you have permission (preferably in writing; email is fine), you should always provide credit for anything you use. While it's up to you to decide on a specific format, in general, you should identify the work as closely as possible to where you display it. For example, a photo should have a caption directly below it that indicates where it came from. Text you've copied should be credited either within the body of the larger material or with footnotes (although footnotes are not preferred on the web -- they're both hard to read and hard to find, according to usability studies).

Make sure to include the name of the copyright holder and a link back to the copyright holder's source, either their main website or the specific page where the work was found. Check out this an example:

Did you know ironing is period? Colonial Williamsburg has proof from the 18th century.

Photo: Trystan L. Bass / Flickr

Note that Creative Commons licenses require specific attribution -- this is spelled out in each type of license, so just follow that wording. But do keep it right next to the work.

16. But hey, you've copied stuff on your website, why are you saying I shouldn't?

Fact is, nobody is perfect. We are all learning and hopefully trying to do better. Just because I work on this stuff for a living doesn't mean I always do it right on my personal websites. Not every big-name costume blogger is perfect either.

Also, you may not know how someone actually got the images they've posted. Maybe she scanned them from her vast collection of books that feature many public-domain images (see #10). Or maybe she visited the original museum, which actually allows photos (see #9). Or the work could be under a Creative Commons license (see #14). Don't get too judgmental unless it's your work that's being ripped off. In which case, have at 'em!

To sum up:

1. Most stuff is copyrighted, even your own (except costumes, sadly).


2. Find out who owns things and ask permission before you copy it and post it online.


3. Respect other people's work, and they're more likely to respect yours.

Copyright Cheat Sheet for Costume Bloggers
You CAN post on your website	You CAN'T post on your website, unless you have written permission
Photos you took	Photos from other people
Drawings & art you made	Drawings & art other people made
Anything you wrote	Other people's writing, except small quotes, carefully credited
Photos & scans that are exact copies of public domain art	Photos & scans of copyrighted art
Photos you took of a costume display at a museum	Photos from a museum website of its costume display
A couple small movie/TV screencaps in a movie/TV review article	Tons of movie/TV screencaps for reference or for people to download
Creative Commons licensed work with appropriate credit

For Reference:

• United States Copyright Office -- More than everything you ever wanted to know about the law.


• Creative Commons -- Main website and wiki for the licenses.

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
You are welcome to repost this complete article with attribution, but do not alter or edit the contents.

Comments

[jaguarx13.livejournal.com]

Thanks to both you and Trystan for all that wonderful information.

[morrigoon.livejournal.com]

This is a little off the costuming topic, but as regards derivative works, maybe you can answer a question I've been struggling with. How does copyright apply to a painting of a structure? Specifically, if I do a painting of a building or ride vehicle at Disneyland (no copyrighted characters involved, just architectural ans engineering designs) - do I have the right to sell that painting?

[trystbat.livejournal.com]

When it comes to selling a derivative work, I'd consult a copyright lawyer to be sure. But in my reading of copyright law, making a painting of a copyrighted item may create a new copyrighted item belonging to you -- think of Andy Warhol type work. However, there's also the recent case of the artist who made the 'hope' poster of a photo of Barak Obama during the 2008 election. The photo was from an AP news story, & the poster artist did not get permission to use it. While he didn't sell his poster, he did get into legal trouble later on.

Point being that sometimes the rules aren't black or white. Tread carefully!
--Trystan

[dreamsofpaprika.livejournal.com]

Yeah, there really isn't any copyright for costumers, but there should be. That's how people can teal each other's fashion ideas. I mean, it's okay to get *inspired* by someone else's work, but to completely rip it off as your own is not right (i.e. look at Fleur's wedding gown in DH part 1. Beautiful and all, but the idea was totally stolen).

[jadecat9.livejournal.com]

That's what the fashion industry has been trying to do for the past 20+ years or so. The fake designer clothing/bags are evidence of that.

Now, fashion designers CAN go after the fakes, because they've trademarked their logos/names. And fakes are designed to create "confusion" by posing as the real thing. But, still...thats related to *trademarks* versus *copyright*.

All costumes, clothing, knitting, etc, patterns are considered "useful articles" by Congress, and the item itself can't be copyrighted (although the words, images, etc of the pattern CAN be). The idea is that people can't copyright a hat or dress or a pair of jeans, etc. Can you imagine of Levis would have been able to copyright "jeans"...you'd only be able to buy them only from Levis.

NOW, if your costume, clothing, pattern, etc, has a very UNIQUE element (like your own designed embroidery pattern, etc.) then THAT unique element is copyrightable...but not the whole item in question.

(there's a good write-up on things like embroidery: http://www.tabberone.com/Trademarks/CopyrightLaw/EmbroideryDesigns.shtml).

I do agree with you that the stealing someone else's designs is completely unethical.

[dreamsofpaprika.livejournal.com]

I agree. Thanks for the info!