Tartan & Copyright

[Morris at Heathfield]

I have seen many other people designing new tartans and posting their work here. I'm inclined to do the same, but based on the information I have found on the Scotweb website (related to their Tartan Designer software) I'm a bit skittish.

If I understand the information on the Scotweb website correctly, the act of designing a tartan and fixing it in some kind of image format is not sufficient to give the designer the copyright to the tartan. Instead they must commission a woven length of cloth in the tartan they've designed. This seems a bit counterintuitive to me, as it's my understanding that according to international convention the act of publishing a creative work in any format is sufficient to assign the copyright to the creator of the work.

I can understand that, if I designed a tartan with alternating black and yellow stripes of equal width, not much creativity was involved. On the other hand, if I spent several hours working on a fairly complex tartan to get it to look esthetically pleasing, how is that much different from spending the same amount of time drawing a picture of a spaceship or whatnot in Photoshop or the GIMP?

Furthermore, it's my understanding (again from reading Scotweb's site) that, if I displayed my design publicly, if someone else saw it and liked it, and if that person was the first to commission a woven length of cloth in that tartan, they would hold the copyright to the design. Money trumps creativity and authorship? That doesn't seem just to me.

Or does tartan fall under trademark law rather than copyright law? I doubt that's the case, ordinarily.

I realize this verges on soliciting legal advice, but I think, given the number of ordinary people who are creating tartans nowadays, that some clarity on these matters is due, perhaps from people who have designed, registered, and commissioned tartans.

Or maybe I just need to wait for this article to be finished, which "will be appearing here shortly" ever since the STA website was redesigned—about a year ago, was it?

[CDNSushi]

Legal advice I cannot give. But gut-feelings are easy and free. If you ask me, I think you're worrying a bit too much about this. Somehow I strongly doubt there are hordes of would-be thieves just waiting for the moment you post up your design to pounce on it, beat you to having it registered and woven, and you missing out on riches and fame.

(Sorry. I wasn't trying to come across as snarky. I really wasn't. But I am relying on a little bit of hyperbole here)...

The fact of the matter is, most people design a tartan that is, above all, meaningful to them... And it's something that they, themselves can be proud of because it's something that THEY designed and created. There is nothing to win or gain by stealing someone else's design. Designing a tartan is for the love of the thing, not because there is a sense that one will profit from it somehow (not usually, anyway).

So my two bits on this -- take a deep breath, relax, design to your heart's content, and feel free to share with the rabble, your family and your friends. If I'm wrong, and all of a sudden there's a Chinese sweatshop churning out Morris at Heathfield knockoff tartans... I'll eat my kilt!

But if you are simply asking for the sake of curiosity and "what-if" as a thinking exercise, I really don't know how trademarks work when it comes to tartans.

[Morris at Heathfield]

Legal advice I cannot give. But gut-feelings are easy and free. If you ask me, I think you're worrying a bit too much about this. Somehow I strongly doubt there are hordes of would-be thieves just waiting for the moment you post up your design to pounce on it, beat you to having it registered and woven, and you missing out on riches and fame.

(Sorry. I wasn't trying to come across as snarky. I really wasn't. But I am relying on a little bit of hyperbole here)...

No worries. I'm the kind of person who doesn't like to leave a shopping cart unattended, even though I know it's highly unlikely that someone else in the store at the same time wants to check out the same exact groceries, and will risk possibly incurring my wrath, when it's a lot easier to just find their own produce.

I'm not terribly worried, I've just been made a bit cautious by certain statements on the Scotweb website.

This article may give some insight into the problem:- http://www.lawdit.co.uk/reading_room...se%20-file.txt.

Thank you. It doesn't really answer my question about how copyright on a tartan is obtained, however.

I've had dealings in the past in order to protect my own designs, and on one occasion prosecute for breach of Design Registration.

Demonstrating that there may be some reason to be cautious. But of course, some people will breach copyright—or design registration—even when it's clearly evident who the owner is.

There is:

Copyright

Intellectual Property Right

Reproduction Rights

Design Registration (in the UK and often incorrectly called Patenting)

Probably other terms too

Some one has by right as the designer, although one has to prove the design date to be in with a chance, others one can assign or sell and the latter one has to purchase.

I'm not terribly familiar with British law, but in the US the phrase "intellectual property" is basically a portmanteau term covering copyrights, trademarks, patents, and trade secrets. I don't recall ever hearing of design registration before.

Well seeing as you live in texas, and that law relates to the uk... Im gonna take a wild guess and say that even though the law exists it may not be applicable to you...

Not applicable to me directly, but should I decide at a future date to commission a length of cloth in a tartan I designed, chances are the weaver would be located in the United Kingdom, and I'm guessing the weaver would only be subject to UK law, whatever that may be. Which is kind of what I'm trying to figure out. But maybe I should just do my own research first, or ask a paralegal to do it for me.

The scottish register of tartans act mentions that a woven sample MAY be sent with the application which is probably where the information you have got corrupted from....

Nope, I'm referring to statements on the Scotweb website, for example here and here.

EDIT: Or did you mean maybe the Scotweb folks might have misunderstood the Scottish Register of Tartans Act?

The simplest thing I can tell you, at least as far as US law is concerned, is that the question of copyright boils down to what you can prove in a court of law should someone challenge you or you should challenge someone else over the question of intellectual property rights.

Basically, as soon as you design a thing, you have the copyright. The question is can you prove it if you have to?

...Posting an image of it here on the forum also creates a record. ...

And, to answer your more specific question, no, you don't have to have the tartan woven into cloth in order to establish copyright of your design. ...

Thank you. That's completely in line with my understanding of how copyright law works, at least in the US, which is why I find the statements on the Scotweb website so puzzling. Perhaps I need to ask Nick what's up.

Ah well, I suppose that, even if things turn out to be according to my understanding of Scotweb website, the worst that could happen is that someone else would get the credit and my Scotweb points. I just hope they aren't allowed to change the tartan's name.

[figheadair]

I'm not terribly familiar with British law, but in the US the phrase "intellectual property" is basically a portmanteau term covering copyrights, trademarks, patents, and trade secrets. I don't recall ever hearing of design registration before.

Design Registration is something done throught the British Itellectual Property Office, formally The Patent Office which 'basically' allows a design to protect their design from being sold under another name or altered and sold under the same name.

[O'Callaghan]

I am a Brit by nationality and I am a US patent agent. As such, I am qualified to advise on US utility patents (regular patents, not utility models, which means something else in certain countries) and on US design patents, but not on copyright or trademark, except when advising which type of intellectual property is appropriate, and cannot advise on anything relating to prospective litigation. However, unless I am advising a specific client on their specific legal problem it doesn't count as legal advice anyway, but I have to disclose that it's not legal advice. That was a disclaimer.

Design patents in the US and design registrations in the UK, as well as similar things in other countries, often called design models, protect the ornamental appearance of an article for a set period of time, 14 years in the US and the UK. There are some designs for tartans, but once they expire there is no more protection. Also, although they are colour in the UK, in the US they are black and white!

Utility (i.e. not design) patents last 20 years from filing, and they protect the functional aspects of things, the way they are made or the way they work, summing it up as simply as possible, but they must either be novel (new) or non-obvious (which in European law is termed having an inventive step). You can get a patent for a fabric, or a fastener or even perhaps features like pockets if they are really different, but you can't patent a tartan.

Trademarks protect the use of a name in commerce, and can be renewed indefinitely. However, a trademark would only protect the name of a tartan, not the sett, and to get it trademarked you have to make and sell it.

Copyright covers artistic works, and will protect your tartan sett long after you are dead. Seriously, it used to be 50 years after death, but was extended to 70 (at least in the US, not sure if it's 70 or still 50 in the UK) specifically to keep Mickey Mouse out of the public domain. Really, I'm not joking.

However, the UK, where most of the mills are, has no copyright register. In practice this tends to mean that they need to lodge their sett with some independent register to prove the date, and tartan registers tend to require a woven sample, as Mr. Newsome pointed out.

The US has a copyright register, but to comply with international treaty, copyright has to come into existence when the work is created, not when it is registered. Their way around this is to require you to register only one day before you sue, although you can register earlier if you choose to. This means, however, that although you can search the US copyright register, there is no guarantee that any particular copyrighted work is actually in there. It may pop up the day before they sue you!

Another quirk of copyright that is not found in any other form of intellectual property is that a foreign copyright is all that is needed to sue you. In comparison, you must have a patent, design or trademark in the country where you want to sue. Not so with copyright.

So for example, if a UK mill has proof of their UK copyright, such as, but not limited to, an STA registration, that is all they need to have a cause of action against you in the US. In case that still isn't clear, they don't need to have a US copyright to come after you in a US copyright case, as long as they have copyright somewhere.

OTOH, you have no cause of action in copyright unless you have been copied, which is not true of other types of IP. If you have a design for your sett (which covers the country they are in and hasn't yet expired) you can sue even if they had no knowledge of it, for example.

This is not legal advice, believe it or not, and you are not my client.

[Morris at Heathfield]

Thank you all! Thanks, Nick, for chiming in, and thanks, O'Callaghan, for clarifying the legal matters. I ended up doing a little bit of research online and found this page especially helpful. To summarize my current understanding:

• The UK is a signatory of the Berne Convention, therefore the copyright of a work is automatically assigned to its creator, assuming it's not a work for hire.
• For purposes of legal proof, it is helpful to register your copyrighted work.
• The UK has no national copyright office, only private copyright registration facilities.
• The Scottish Register of Tartans functions as a copyright registration facility. (I'm not quite certain about this one.)
• The weavers have no way of determining the ownership of a tartan, therefore their policy is to weave any tartan they are asked to weave unless they find it restricted on a tartan register to which they have access.

So the basic point here is that the copyright of a tartan resides with the original creator, just as I thought should be the case, but practically speaking it may be difficult to prove your ownership of a tartan in a court of law if you haven't registered it, and also the weavers have no way of determining the ownership of a tartan that isn't on a tartan registry.

And, yes, I realize the above is somewhat UK-specific. In the US you would register your copyright with the U.S. Copyright Office before initiating a lawsuit, but the UK weavers aren't going to bother checking with them before weaving a tartan.

It seems to me, then, that posting a tartan image online is like posting a story online. There's no guarantee that someone won't rip off your story and have it printed and sold to bookstores. Simply posting something online might not be the best form of legal proof, but people do it all the time, and most of the time it turns out okay.

Anyway, I'm not terribly interested in litigation. My main concern was that somehow I could lose legal ownership of a tartan I designed myself. I don't care about legal restrictions, just ownership. The answer appears to be that I can't lose legal ownership unless a court of law somehow determines that someone else is the original creator. (And I assume here that commissioning a woven length of cloth does not constitute legal proof of copyright if it can be demonstrated that I had designed the tartan at an earlier date.) If that is the case, I think perhaps I will take my chances.

[CDNSushi]

duplicate post deleted.

[PEEDYC]

This article may give some insight into the problem:- http://www.lawdit.co.uk/reading_room...se%20-file.txt

See also :- http://www.tartanregister.gov.uk/ This seems to formalise all previous registers of SCOTTISH tartans.

[figheadair]

I've had dealings in the past in order to protect my own designs, and on one occasion prosecute for breach of Design Registration.

I'm no expert but it's clear that this is a hugely complex subject not least because of confusing nomenclature and the fact that many agreements, laws etc are intra-national and not recognised internationally or cannot be enforced without great cost.

There is:

Copyright

Intellectual Property Right

Reproduction Rights

Design Registration (in the UK and often incorrectly called Patenting)

Probably other terms too

Some one has by right as the designer, although one has to prove the design date to be in with a chance, others one can assign or sell and the latter one has to purchase.

Each has different conditions, lasts for different amounts of time, is differently recognised and enforceable.

[madmacs]

Well seeing as you live in texas, and that law relates to the uk... Im gonna take a wild guess and say that even though the law exists it may not be applicable to you... This was recently seen with scotland and the Giggs super injunction...

That doesnt mean however that there are not plenty of international agreements in place concerning copyrights... Some or all of which might apply... ;)

The scottish register of tartans act mentions that a woven sample MAY be sent with the application which is probably where the information you have got corrupted from....

http://www.legislation.gov.uk/asp/20...artans/enacted

Internet copyright and public domain is a whole different mess however...