Tartan & Copyright

[Calico]

Because tartan is a repeating pattern, and there are only a limited number of sett sizes that are usable, any computer graphics programmer could generate every possible pattern in a very short period of time.

Claiming yours is unique can be counter-productive. You would need to specify the EXACT color of each thread. Normally weavers say "blue". To claim copyright you would either need to copyright every possible shade of blue separately, or specify your blue (using RGB values, for instance). Once you specify it at that level, then someone creating a similar tartan but using a different color thread would no longer be infringing.

And really, just swapping two similar color threads creates an entirely new pattern, even though only microscopic examination could detect the difference.

I think the whole "restricted tartan" and copyright issue is unmanageable when it comes to tartan. Tartan has existed for hundreds of years. How can anyone claim theirs is new and unique to them? It just isn't likely to be true, or at least verifiably true.


Also, after reading your last post, I should mention that Nick has said (on this site) that Scotweb no longer claims a copyright on designs created using their online software.

[Morris at Heathfield]

Well, there are really only two things I care about. The first is that the name of the tartan is preserved. If I decide to create a "Morris of Cowley" tartan, for example, I want it to remain just that. I don't want to find it being sold everywhere as an "Austin of Longbridge" tartan. The second is that I am credited as the designer. I care less about the second than the first, however.

Note: after looking over the Scotweb website some more, it now seems to me that the statements there are mostly Scotweb's way of protecting themselves from copyright claims. That is, Scotweb doesn't assume you hold the copyright on the tartan you supposedly designed in their Tartan Designer: you have to prove that yourself. I am still puzzled by this statement, however:

Note that until a design is recorded as a formal design by being physically produced, any other user can freely copy and commission its production, thereby becoming its legal ‘owner’.

It seems to be at odds with my understanding of copyright law.

[Nick Fiddes]

Thanks to Morris at Heathfield for a heads-up about this thread. I'll try to answer from Scotweb's point of view. But note that nothing I say should be taken as more than personal opinion, and certainly not legal advice, as you're right that our primary interest is in distancing ourselves from any copyright claims or other potential legal wrangles.

However, I have been involved in quite a number of widely-informed discussions on this sort of subject over the year, not least while sitting on the advisory board for the new Scottish Register of Tartans. And there too, the policy has been strongly NOT to make any representation that having a tartan recorded implies any legal rights. Registration provides helpful evidence of prior use, but does not constitute proof of ownership.

The reality is that copyright claims could and would only ever be settled in a court of law, with the parties squabbling over whether this green was too close to that green, or this line was thicker than that line... very much in the same way that music composers sometimes un/successfully argue that someone else has copied their song. It comes down to the perceptual opinion of a judge (quite possibly octogenarian, colour-blind, and with a deep-rooted political prejudice against symbols of Scottish nationalism). So the rest of us simply have to second-guess whether 'this' is too like 'that'.

And it's also true that whilst tartans are ALMOST infinitely variable in theory, it would be trivially easy for someone now to program a computer to permutate every Pantone into every feasbily weavable pattern, publish these on a web site somewhere, and claim copyright. Would anyone wish this to happen? But back in the real world, it is the widely-held view of those in the field that no judge would uphold such a claim. It's on that basis that evidence of 'substantive use' is sought, to help inform others of a possible copyright claim. (And incidentally, you really don't want to have been present at the endless arguments between the 'wovenists' and 'non-wovenists' at which it was finally agreed after a lengthy hearing at a Scottish Parliament committee, at which I had the dubious pleasure of giving evidence, that a tartan could be put to use in some other way than purely woven fabric and still constitute substantive use.)

But this perhaps helps explain why, in publishing the Tartan Designer software as a public service, the last thing we want is to get called in to arbitrate on whether any design therein offends any other. So instead, in effect, we call it a toy, a mere sketch-pad, and ask you to accept this definition should you wish to play with our toy. If you don't want your design ripped off, don't publish it. (You can still use it to design in, but just don't click the sharing button to include your design in the Gallery.) Simple.

So it's only when someone asks us to weave a piece that we then have to consider questions of copyright. And fortunately between our own experience, and that of the weavers, this is pretty reliable.

Finally, for what it's worth, I really quite dislike the idea of 'protecting' tartans anyway. I can understand why some corporates etc. want to, or why a designer who puts a big effort into not just designing but also marketing an attractive new tartan should wish to prevent other commercial competitors from freeloading on their investment. But for me, historically, tartans have been about building inclusive communities, and providing a symbol by which others could express friendship and a common bond or allegiance. It seems to me that copyright turns this on its head, and is the social equivalent of a gated community shunning anyone wishing to show some relationship, which I find a bit sad. I have to ask, why would you want to do that?

This particularly applies to elementary family name tartans (e.g. Bloggs... as distinct from Bloggs of Bloggville, which is fine). I personally have long been dismayed by the rather unprincipled policy at both the old tartan registers of allowing individuals to "stake a claim" to a common family name, and then exclude others of that name from wearing 'their own' tartan (or indeed for someone to register quasi-official tartans for all sorts of countries, states, organisations, etc.). So I'm proud that it was mostly due to my own arguments that the new Scottish Register of Tartans now requires evidence of appropriate authority to register any 'top level' surname (e.g. from a Family Association) or organisational name such as a geographic entity.

So as usual I've rambled on a bit. But I hope you'll see why this is just not territory we want to get embroiled in. As someone else remarked, the chances are that no one will want to copy your design anyway. But if you're worried, don't publish it until it's woven. Once you have a physical sample, get it recorded if you want to make it exclusive, and then all the other reputable weavers will know to steer clear if someone else asks to weave it. But when push comes to shove, and the tartan tat merchants get it copied by a sweat mill in Pakistan, it will be up to you to take them to court (again). Good luck.