All of the designs on this website are protected by copyright. It is an offence to infringe copyright.
If you do not understand what copyright means, scroll down and read this article by Hazel Blomkamp, which appeared in Craftwise Magazine during 2006.
If you have any further questions, please email Hazel and she will attempt to answer them.
COPYRIGHT: FREQUENTLY ASKED QUESTIONS
South Africans perceived as the worst copyright infringers in the world. Moreover, all our crafters should be embarrassed by this perception. How can we ever hope to compete globally if we have this reputation? It will take China more than a century to recover from its reputation as the copy country of the world, and the same might happen to South Africa. Recently some embroidery designers started to take action against those infringing their copyright. As a result, many questions have been raised. I will attempt to answer them.
1. What is copyright?
Copyright is the exclusive right vesting in the artist to do or authorise others to do certain acts in relation to the artist’s artistic work. The person who first makes or creates the work is the artist. That ownership means that no person may copy that artistic work without the owners permission. It also means that no person may pass that work off as his own, particularly for gain or profit.
2. If I design something, do I have to register the copyright?
No. Copyright automatically subsists in all original artistic works.
3. How is an artist’s copyright protected?
It is protected by statute. The statute regulating copyright is the Copyright Act, 98 of 1978. Because South Africa is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, each member country is bound to give foreign works the same protection. Foreign works, thus, have copyright protection in terms of South African law and South African works have copyright protection in foreign countries.
4. When does the artist not automatically own copyright?
- If the work has been created whilst in the employ of, say, a studio, that studio is the owner of the copyright.
- If the work has been commissioned and paid for, the person who commissioned the work owns the copyright.
- If the work has been made specifically for publication,the publisher of the book or magazine becomes the owner of the copyright.
5. Can I sell my copyright?
Yes. However, you retain the residuary or moral right to object to any distortion, mutilation or other modification of the work, where such action would be prejudicial to your honour or reputation.
6. How long does copyright last?
Until 50 years after the death of the artist.
7. How much of a design do I have to change before I can call it my own?
There is a common misunderstanding in the craft world that you only have to change a design by 5% and you can call it your own, that you only have to make 13 changes, and so on. This is not correct. If the design is similar to the original source, and it can be proved, you are guilty of copyright infringement.
In determining whether a work is a copy of another work, a court would look at two factors:
- whether there is the necessary degree of objectivesimilarity between the second and the first work, and, if so;
- whether such similarity is causally connected to the first work (that is to say, could not have been done but for your original work being available to the second craftsman, because the similarities could not have come about co-incidentally, each craftsman independently creating the same thing).
8. May I take elements from various different designs, weave them together to make a completely new and different design and call it my own?
Yes you may, provided that the final design is in no way similar to any of the designs that you used as a reference point or, indeed, to any other existing design.
9. If somebody buys a kit, completes it and then wishes to sell the finished article should that person obtain permission from the designer?
Yes. The owner of the copyright has the exclusive right to copy the work and to sell copies of the work. The owner of the copyright also, of course, has the exclusive right to authorize others to copy the work and to sell copies of the work.
10. If a photograph and instructions for an original design are published in a magazine, is it permissible for a third person who teaches craft to give classes (for remuneration)on how to complete that design?
This is a difficult question. The answer depends upon what the Courts would hold the designer had impliedly authorized by allowing the magazine to publish it. In the absence of any statement appended to the article regarding your limiting that authorisation to single reproductions by readers of the magazine for private use only, it might be difficult to contend that your implicit authorization did not go further; for example, authorising the use of the instructions for the purpose of teaching others. If, as a designer, you do not wish instructions that are published in a magazine or book to be used for teaching then you need to persuade the publisher to state this in the content of the article. If you are teaching from a magazine it is understood that each student should have purchased his or her own copy of the magazine. You would infringe copyright if you made a photocopy of the project for each student.
11. Can I buy a craft kit or printed design and copy the design and instructions for a friend or relative?
No. This will infringe the copyright of the designer, who is the only person authorized to make copies and it will make you liable for criminal or civil prosecution.
12. Can I attend a workshop and then set myself up as a teacher of what I learnt, using the notes and instructions handed out at the workshop?
No. The person who gave the workshop will have written the notes and instructions thereby making him the author. You are not allowed to copy and distribute books (or parts of books) and the same applies to notes and instructions. If you want to teach, you must write you own notes and draw your own diagrams.
13. If I see something at an exhibition, remember it or make a quick sketch of it, can I then make it up and call it my own?
No. If courts found an objective similarity between your work and the original from which it was copied, you would be guilty of copyright infringement.
14. If I buy, say, an embroidery kit and wish to enlarge or reduce the design in order to trace it onto, for example, a tablecloth, would this infringe the designers copyright?
Yes. The designer retains the residuary or moral right to object to any distortion, mutilation or other modification of the work. That is how the law stands but, in practise, it is unlikely that any designer would object to your doing that. However, the name and contact details of the designer are likely to appear somewhere in that kit and, if you wanted to be sure, give her a call or send her an email. The reply that comes back is likely to be that the designer has no objection. The same would apply if you wanted to trace the design onto a different fabric.
15. If I am unable to find a book that I want, am I allowed to photocopy pages of it from a copy in the library, or a friends copy?
No. You should exhaust all attempts to find your own copy. Amazon.com has many second hand books that you can purchase, so even if it is out of print there is still a chance that you will be able to buy it. If you are still unable to find it you have to accept it. You are not allowed to make photocopies of any portion of a book.
16. If I have, say, a calendar with a picture that I would like to colour-copy and embellish with embroidery stitches, can I do that?
The law says you cannot because only the owner of the copyright can make copies. Once again, though, in reality it is unlikely that any photographer/designer/illustrator would object to one copy being made for these purposes. The problem does arise, though, if you are a teacher making copies of the pictures on your calendar and distributing them to your students for remuneration. You would be liable for prosecution.
17. What do I do if my copyright has been infringed?
You have two options.
- You can choose the civil route, which would probably involve employing the services of an attorney who would take your case through all of the necessary processes to seek relief for damages, usually monetary, that you feel you have sustained by having your copyright infringed.
- You could lay a criminal charge under Section 27(6) of the Copyright Act.
The penalty provided for in section 27(6) is as follows:
A person convicted of an offence under this section shall be liable-
(a) in the case of a first conviction, to a fine not exceeding five thousand rand or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, for each article to which the offence relates;
(b) in any other case, to a fine not exceeding ten thousand rand or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment, for each article to which the offence relates.?
It is understood that in order to do either of the above you must not only be certain that copyright infringement has occurred, you must have solid proof. You must also realise that the wheels of justice turn slowly and that you will not come to a satisfactory conclusion overnight. The other factor that you need to take account of is that you will make yourself very unpopular. Crafters are usually very loyal to those that are teaching them and providing them with cheap designs, and it is those people that will turn on you. You are likely to get threatening emails and phone calls and, probably, your turnover will suffer for a while. Just remember that those with loudest voices are likely to be the biggest culprits. However, because of our bad global reputation it is up to all of us to stand up and be counted if we are going to get rid of it.
It is up to crafters, teachers and shops that are copying designs to stop this practise, for the sake of the future of craft in South Africa. It is up to those same crafters to check that the designs they buy are originals. It is up to the shops to make sure that the designs they sell are originals. It is up to the designers to refuse to sell to shops and teachers that have a reputation for selling and distributing copies. It is up to those same designers to take action when they discover that their copyright is being infringed. If we continue to be quiet about it, because we are afraid of being accused of bad taste, this problem will never go away.
POINTS TO CONSIDER:
- You cannot walk into a shop, pick up an article, and walk out without paying. You would be arrested for theft. Copyright infringement is also theft – it is the theft of intellectual property.
- Designers, just like the shops mentioned above, have overheads. They have had to spend money to set themselves up with computers, digital cameras, materials, etc. They also employ staff to pack kits, keep their books, and do their general administration. The sale of their designs is what pays their overheads and provides them with a modest profit. They are entitled to that, just as any other business or professional person is.
- Every crafter likes to be able to walk into a craft shop or go to a hobbies fair to buy new and exciting designs. If designers are being copied to the extent that it is no longer worth their while to go to the trouble and expense of releasing their designs to the crafting public, they will close their businesses. That will mean that their designs will no longer be available. If enough designers are forced to do that because of the extent of copyright infringement, the available designs will diminish and the choice will become very limited. If you think that will not be a problem because designs can be imported, you need to be aware that there are companies abroad who will not sell to South Africa because copyright infringement is so rife here. In addition, a well-known South African designer has recently put a hold on releasing three of her most recent designs. There is a chance that she may only release these designs abroad and that they will never come onto the South African market.
- In the thousands of years of human creativity, there probably is not much that has not been created in some shape or form. We are all inspired by something that we have seen, but there is a difference between inspiration and copying – and it is not hard to see.
Somebody said to me the other day that if she had to start getting permission to copy all the images that she copies for her students it would take the fun out of it. An interesting attitude and one that does not take into account all of the above! I am pleased that she is having fun but am not pleased that there are artists out there that are not receiving royalties from her for the hard work that they put into producing the images, and not receiving royalties from her to cover their overheads. Above all, I am not pleased that those artists are having their intellectual property stolen from them by someone who is just having fun. It is possible to have fun legally and honestly. There are many free designs available on the internet. You can obtain free designs legally from many other sources and you should do so. However, if the design you want can only be obtained by paying for it, then pay for it. Put away your tracing paper and light boxes, ignore your scanner and don’t visit copy shops or send a book to the office with your husband, with a request that he copies certain pages.
Copyright is not a difficult or complicated concept. There is only one thing you need to understand: DO NOT COPY. Under any circumstances.
Visit the STOPCOPY website at http://www.stopcopy.dicraft.co.za/join.html and add your voice to the South African needle crafters fight against copyright infringement. We welcome your support.