Saturday, March 24, 2012

Tote Bags, Authors, Designers & Copyrights -- Plus Update

[Update on the Update! Kate Spain's posted a final comment. I'm not sure she still completely understands the struggle quilting professionals have had with her argument -- but we need to give her credit for trying.  Honest. Go see her blogpost here. 
   If you're curious about my take on the subject, you can see that too -- here.]

 [3/27 Update: Todd Hensley, C&T's publisher, has commented on this whole situation. Go to this post to get the scoop.]

You may not have heard the recent flap between Kate Spain, Emily Cier of Carolina Patchworks, Moda and C&T Publishing.
    But you should -- especially if you write books, design patterns, or just plain Make Stuff.

Briefly explained:
    *Emily Cier wrote a book called Quilt Remix. (She also wrote one called Scrap Republic.) Both books contain a variety of easy-to-make scrap quilts in bright, cheerful colors. C&T published them.  This is not Emily's first book, nor her first quilts. She's got some years of doing (and selling) this work.
    *Moda sent Emily a variety of fabrics for use in making the books' samples. This, by the way, is common industry practice. I myself got a batch of lovely reproes from Jo Morton via Andover Fabrics for use in my book, Quilts of the Golden West.  (Thanks Jo -- they were beautiful!)
    *Emily used the fabrics, including a selection from one of Moda's designers, Kate Spain. (Quilting-use fabrics are a sideline for Kate, who designs for housewares and a ton more stuff.)
    *C&T decides to print a tote bag with one of Emily's quilts on it, as a promotional tool. That quilt contains at least one Kate Spain-designed fabric. (This isn't the first time C&T has done this, by the way. It's been common practice for them for some years. See the tote bag in question here, or below.)
    Important note here: Kate's fabrics are not the only ones used in the quilt photographed. (Update: According to Kate, ONLY her fabrics -- her Fandango line for Moda -- are reproduced on the tote bag, though the pattern from the book was Emily's. I can't tell for sure, since side #2 is not reproduced on the Amazon listing.)
   It's a scrap quilt, people -- none of the designers' names are on the bag, nor are the manufacturers' names. According to Emily, she does give credits in her book. (Update: The designers are left out, according to Kate -- only the manufacturers are mentioned.)
    *Kate finds out. She also notices that her name is not specifically on this tote bag -- it's Emily's and the book title, instead.

    *Does Kate go to Moda, and ask them why in the world did they send her fabrics out to book authors? Does she remind herself that there are other designers' fabrics represented on this bag? (Update: Kate says she's the only one.) In the projects? In the book? (Update: Kate mentions she realizes that other designers' fabrics are represented besides her own.) Does she even understand the nature of scrap quilting -- that it's standard practice to mix and match a variety of fabrics from different periods? 
    *Instead, she sics her lawyers on Emily and C&T. Said lawyers threaten to sue unless the tote bags AND the books are destroyed and Kate gets $150,000. (If Emily's royalties are anything like mine, she'll be an old woman -- if ever -- before she even gets this much for writing the entire book.)
    *C&T caves -- and the tote bags are pulled off the market. Even after the tote bags become a non-issue, the lawyers continue to threaten. (Don't believe me? Go see Emily's comments.)
   *Kate publishes a response on her blog, which sounds genuinely puzzled and hurt that anyone would take her 'gentle' approach amiss. Kate says:
The most important thing to know is that there is no lawsuit, there never was a lawsuit, and I did not sue anyone. The book containing images of my fabric continues to be made available for sale and has not been changed by any action I have taken...
[a long discussion on copyrighting fabric designs follows]

     Similarly, an author or publisher cannot use images of my designs which may appear in their books (for example, as part of a quilt that's shown in the book) to manufacture/market other merchandise, such as thousands of tote bags, and sell that merchandise featuring my copyrighted designs for profit without first obtaining a license or permission from me to do so..

So it's all about the bags. Except it's clear, it wasn't. Look at Emily's response:

    As Kate said, she *did not* file a lawsuit — this is true. Instead, as I’d said, her lawyers formally and repeatedly threatened a lawsuit if several specific conditions were not immediately met, including payment of large sums of money and other conditions...
- And regardless of the tote bag issue, Ms. Spain did indeed go after the book. Kate said that the subject was not my book, but the totes used in marketing my book (which I referred to as “the trigger” in my previous post, in order to help maintain Kate’s anonymity while the tote was removed from sale).  This tote featured a photograph from the book (which included a fabric printed with her licensed designs, as well as my name and the name of the book in large letters). Although she may have personally considered this the core issue, her attorneys targetted both the tote *and the book* in their demands. Moreover, C&T had contacted Kate to deal with the tote once they’d heard she was unhappy with it and before the lawyers were ever involved. As I said in my original post, even after they had removed the tote from sale and agreed to several other demands with regard to the tote, Kate’s lawyers continued to press the issue of the book and refused to withdraw the threat of a lawsuit — until C&T got their own lawyers involved.

 Authors and pattern designers everywhere are saying, "There but for the grace of God, go I." Me included. These people are just a tad concerned that if they use any Kate Spain fabrics in their book or pattern samples, and those quilts are photographed and used for publicity -- or win a national prize, God forbid, which also means photographing and publicity -- Kate will once again decide that she should be credited and duly compensated.

     The real terror here -- what if every fabric designer makes this demand? Or decides that since their work is represented, they 'own' the property their fabrics are pictured in -- or on? What if they send you the fabric...does that mean you can trust that they will not take this approach? What if they give permission -- then once the book is in print, change their minds? Do you have the financial wherewithal to hire a lawyer, or withstand the loss of income if your book is cancelled or destroyed? Will the publisher believe enough in your book(s) to redo and/or keep on publishing them, after all this? The possibilities here are truly stomach-churning.

    It's one thing to credit your sources. And I strongly believe in doing just that. But crediting every single fabric designer in a 150-plus patch scrap quilt? I have a mix of fabrics in my own stash that date back to the 1860s, but also include my grandma's Thirties feedsacks and leftover strips from the cutting room at Quilter's Newsletter, where I was an editor for some years. Many no longer even have the selvage that mentions the company and designer. (What bothers me even more about this is one of fabricdom's best-kept secrets:  many designers slightly change older prints, then can legally market the designs as their originals. Jinny Beyer has done it many times over, including the prints for her millenium fabric lines. Not every 'repro' is marketed as such.) 

    The sad part about this: I love Kate's fabrics. Obviously, Emily did too, or she would not have used them. They're bright, cheerful and very appealing, too.
    And I don't have an issue about asking permission for producing promotional stuff like notepads, tote bags and such. Although again, these are pretty standard when it comes to publishing contracts -- and it could be easily understand that Moda agreed to this when they sent free fabric for express use in making quilts shown in the book.
    But that doesn't matter. They didn't get Kate's permission

Kate says,
     I am also thankful, thrilled and extremely humbled to see people use my fabrics to make special gifts for friends and family, or to sell their unique handmade quilts, aprons, cosmetic bags (you name it) on Etsy and elsewhere. Btw, i have a heading on my sidebar where I happily promote these shops. I'm also happy to see my fabric being used for school/church/quilt guild fundraising raffles or in quilt pattern designs, tutorials, books, magazines, and on blogs. In fact, Moda and I give fabric away to inspire and encourage you to create. I will continue to donate to and support your good causes and to encourage your creative pursuits.

Isn't that just what Emily did?
* * * * * * * * * * *

UPDATE:  This post has been getting a lot of visitors, including Kate herself. Kate took the time to comment, including further explaining her viewpoint on some of the issues I've mentioned. I respect and appreciate that. Please take the time to read and consider her comment seriously, as well as the others -- and definitely take some time to read both Kate's and Emily's posts on their respective blogs. (Links are above -- just in case you don't want to go back and wade through, here they are again. Kate's blog is here; Emily's is here.) 
    This is a complicated situation, and as such, cannot be treated lightly. This case has the possibility of huge future implications for authors, designers and anyone who enters competitions. These are frightening for anyone who makes their living or pursues their passion this way, all reassurances by Kate or any other fabric designer aside.
   If you leave a comment on either blog (or here - yes, yes, please do!), remember: ALL parties in this situation should be treated with respect, whether you agree with them or not. No insults or belittling -- all that sort of behavior does is make you the commenter seem mean and petty. Also, please don't hide and use 'anonymous.' If you feel strongly about this, you should be using your name.

The tote bag that caused all the fuss -- from the Amazon listing. If you're thinking, 'Gee, these look a lot like fabrics from the Fifties through the Seventies''re right.


Anonymous said...

I won't be using any Kate Spain fabrics in the future. I figure when I've paid for the fabric - obviously to make something - I should be able to do so. She received compensation for my purchase. How much more does she want? Is the fabric supposed to sit in my stash for years waiting for her obit before I use it. It's easier just to not purchase her fabric anymore. Thanks.

Anonymous said...

Kate, get a life!

Pepper Cory said...

You are spot-on Cindy.

Anonymous said...

Well one can quit buying Kate Spain fabrics that is the simplist cure. Or Kate Spain needs to come to the realization that free advertising is a good thing. Doesn't she want people to use her fabrics? How many times do we see a quilt made up and we want to go out and buy the same fabrics the designer used ? Isn't that a result fabric makers and fabric designers want? To sell out of fabric? If something is from your stash who knows how old it is and the fabric is probably no longer available anyway. The bottom line is not how to stick it to someone else. It is how to work together so everyone wins. Something that Americans seem to have forgotten in their race to amas more money. Kate should send some more fabric and ask her to use it in her next designs and mention Kate's name.

Kate D. Spain said...

Hi Cindy,

Just wanted to clarify several things in your post so no further rumors get spread around about this already unfortunate situation.

First off, in fact all the fabrics shown on the tote bag are mine...they're all from my fabric collection called Fandango. Though the book was about scrap quilting, there were alternate images using fabrics from single lines, mine included.

Secondly, the book used fabric from multiple manufacturers, not just Moda. And there was a general credit to the manufacturers in the front, but nowhere else. If you looked from one project to the next, you would not know which manufacturer's fabric was which. No credit was given to any designer, anywhere in the book. Despite this, the book will be continue to be sold without any changes.

Thirdly, if the tote bags were going to be for promotion, they would have been given away free. Not sold for profit on, Barnes and and shops in the UK and Australia. The tote bags were not made of fabric, they're made of recycled plastic with a digitally scanned and reproduced image of my fabric designs. If they were made out of my actual fabric, made by Moda, i would not have made it an issue because the fabric would have been paid for and I would have earned my fair compensation from its use. See the difference?

Fourthly, with regard to scrappy quilts, it would be impracticable to credit every fabric used (known or not), and because the portion of the fabric shown is commercially insignificant (ie; too small of a portion to make a different), this would fall under something called "fair use". And since it's unlikely that you will be making thousands of quilts in commercial quantities and selling them all over the globe, you do not need to credit the fabric.

Fifthly, I have never, nor will I ever have any problem with a quilter as talented as Emily using my fabric to translate their beautiful quilt patterns into actual quilts. And there are plenty of books out there that use my fabrics without credit, and I'm thrilled to have been included in them despite that.

Lastly, if the parties involved had done all that you do in your books, and quilting practices...none of this would have happened. Hats off to you for doing such a good job to obtain permissions and to ensure that credit is given where credit is due.

Kind Regards,

Cindy Brick said...

Thank you, all of you, for taking the time to leave a comment. 'Anonymous' commenters -- come on, if you believe what you're saying, you should be using your name, as well! Don't hide beneath that blanket...we (and you) can take it.
Kate, I especially appreciate your taking the time to respond to my post in detail. And you're making some points I agree with mentioning the designers, as well as the fabric manufacturers. What I did not say on your blog was that I, like many other teachers, have done a fabric line. (For Marcus Brothers, what seems like a century ago...) So I do have some background in this area, and I understand the desire to be recognized for the work you're doing. Anyone writing or designing feels the same way.
Those tote bags were going for CHEAP. ($5.95-6.95 on Amazon.) My guess is that C&T was rationalizing that the money was covering their actual costs, plus a little. (They sure weren't making big bucks off them.) Could/should C&T perhaps rethink this whole tote bag promotional situation, or at the very least, make sure their 't's are crossed, and 'i's dotted? Should they consider giving them away as part of a promotion, instead of charging for them? (Kate, would you have had less of a problem with the tote bags then? I don't think so...)
All these certainly seem logical to ask, and/or consider.
But I do not believe in treating ANYONE with disrespect. Anyone -- period. I do not believe in belittling or insults. I don't believe in making threats that you aren't willing to take seriously. I do believe in giving as much credit as possible.
Will Emily take even more time and effort to mention specific designers in her upcoming books? (I'm guessing she will.) Will she wince while doing it? At least she now knows that others respect her talent, too. Like Kate's talent, it's worth noticing.
This is a difficult subject to discuss carefully and without emotion. THANK YOU, all of you -- especially Kate -- for trying. I appreciate your taking the time to visit and comment.

DJ Zimmerman said...

I guess I'm confused by all this. What has happened to quilting and the reasons for which we do it?? I dont understand why this has even become an issue unless some of us are in quilting because we see dollar signs! I feel bad for the young quilters growing up in this "industry". Shameful display of what quilting is NOT about!

gaye ingram said...

Cindy, your fairness and your even-handedness is admirable.

If, as Ms. Spain states, the designs were copied onto plastic, that does indeed seem a misuse of her design. In that case, her design is being used without permission of manufacturer or designer, and anyone should know that. The design has been separated from the licensed product, the fabric. That seems the critical issue to me. Otherwise, when the fabric line is sold, it becomes property of the buyer, be that buyer a commercial dressmaker, handbag producer, or young mother selling baby lines on ETSY. The designer shares in the profit of the fabric sold for these projects.

So far as the book in concerned, from an editorial point of view, I would consider it a matter of professionalism to identify the fabric line and producer of any items made of contemporary fabrics from from one line, perhaps from two or three. It might not be required legally (that would depend on the designer's and producer's contract with the writer), but it helps those who wish to use the fabric and is a professional courtesy to the firm that donated the fabrics. It takes but a line or two and is good editorial practice.

Thanks for given even-handed coverage of an issue that you seem to have help unravel for the general public.

Oh how I agree with you about the use of Anonymous!

Gaye Ingram

Cindy said...

For some years, the trend in quilting has been toward creating a quilt from Designer X's latest line of fabrics. Hence the pre-cuts, bundles, ect. For everyone who looks at the tote bag in question & says "Oh yes, Fandango, Kate Spain", the question to be posed is "What do others see when they look at a quilt you have made with Kate Spain fabrics?" or any other designer? This trend has made legal questions about proper use of licensed fabrics inevitable. It is time for quilters to start challenging themselves in their use of fabrics and stop being a mirror of any designer.

Janet-Lee Santeusanio, MQX Founder said...

With all due respect to the parties... I have had an e-conversation with Kate as a result of this situation when it blew up on a machine quilting discussion group I own. Members were alarmed and disconcerted. No matter what anyone thinks, this situation is far reaching and may have continuing repercussions. How do we use fabric? How do we credit everyone involved? When I do hand applique (not very often), I use John James needles and Superior Bottom Line thread.... do I need to credit them too. Fabric designers may end up with an additional clause in their contracts letting publishers reproduce their fabrics in books/totes/eyeglass holders... whatever.

As a large quilt show promoter/event planner I hope that despite the "fair use" argument that no Best of Show (or big prize winning) quilt has fabrics from a fabric designer that may want a piece of that prize money pie.

Personally, what few show quilts I do, I'll be looking at solid fabrics.

Anonymous said...

You are the voice of reason, thank you. That said, I read how traumatizing this threat was to Emily, or anyone else who was threatened in this way. Kate Spain has a right to react to this supposed threat to her artistic works any way she wants. She chose a poor way to get her fears/anger across and I for one will not buy anything with her name on it. I dealt with this sort of issue when I started in embroidery. The bullies came out of the woodwork and harrassed many nice people who had no clue.
So no matter what Kate Spain says, it is what her lawyers did when she sicced them on Emily. Can you imagine how Emily must have felt the weeks after??
For that reason I will stay away from Kate Spain and any other designer who gets mixed up in something like this.
I many times have problems signing my name to these comments and have to use anonymous, so if that happens my name is Judi Butz. I have also written to Moda - one of my favorite fabric producers. I buy far too much fabric to ever have to worry about something like this!

Lynn said...

Thank you for going through the issue so clearly. It is a difficult issue for everyone involved, from the designers to the quilters.

Cindy B said...

Kate, I hope you did one decent thing and gave all your threat money to charity.

Roslyn said...

Like many others of the thousands of quilters on the quilt group to which I belong, I will never buy a fabric designed by Kate just because I would never want to be assaulted for using it, the fear factor is now there & the possibility remains in spite of assurances to the contrary . I will also be very careful about my use of any other designer's fabrics & ensure they are given credit IF the quilts are predominantly ONE designer.
While copyright infringement is real & robs many of their just rewards, the plethora of litigation that clogs our courts & sometimes wrecks lives without basis for said litigation, makes us now as quilters extremely wary. Most quilters I know are generous in their praise of others in the craft & give credit wherever they can, but unfortunately there is always the exception.
This is a sad example of what can happen when one inadvertently gives offense in the pursuit of one's profession.

Peggy St. George said...

Thank you, Cindy, for providing a forum to address this issue and flesh out the facts. I think some good will come from Kate's concern about the use of her fabric images. Unfortunately, Emily and Kate have gotten beaten up pretty badly in the process. Everyone thinks Paula Nadelstern is a hero for taking on the carpet company, rightly so. Kate is a villain for trying to do the same thing...trying to protect her designs. Fortunately we live in a country where we are truly free to make our choices for our own personal reasons, including not buying Kate's fabric because of this. I, for one, am not jumping on that bandwagon. Maybe she would do it differently today, maybe not. She certainly has provided an opportunity to clarify the issue in the quilt world. I thank Emily for her work, Kate as well, and Cindy for helping to clarify what really happened. My disclaimer...I do not know Kate, nor do I own any of her fabric to my knowledge. I am a quilter.

Anonymous said...

I appreciate all the clarifications.

Re: the tote. I think Kate is right and I don't think it matters what the bag cost or if it was free.

Emily said...

Kate, Your comments keep saying that you were fine with the fabric in the book, which I am very happy to hear, but it is not what your lawyer said in her correspondence. Perhaps she didn't accurately represent your views, but she was speaking on your behalf.

Cristyn said...

Let me see if I understand correctly. Someone made a quilt from fabrics, which was then used in an image in a book. The publisher of said book then used that image on a tote bag and sold it. This boils down to taking an image of someone else's work and selling it. To simplify the argument, is this not essentially the same as taking the quilt, putting it on a copier, printing out thousands of copies and then selling each one for a few bucks? The one who did the copying may have had permission from the maker of the quilt, but not the maker of the fabrics used in the quilt. This is very different than using the actual fabrics to make bags which are then sold - and in which case the designer of the fabrics would be compensated with the sale of her item. What actually happened was a copy of her item printed on a bag. It shouldn't have happened, especially not from a publishing company.

Cindy Brick said...

THANK YOU for taking the time to leave your opinions and input on this subject. It's complicated. It's messy. Points can be made in favor of both Kate and Emily's sides.
But it needs to be taken seriously.

You can disagree...or agree, as long as you do it thinking, and with civility. As one of the commenters, Peggy St. George, pointed out, it's a free country, and we are free to make our own choices. (Thanks Peggy, for mentioning that.)
I'll post further on this subject if more developments happen. Otherwise, I've said what I'm going to.
THANK YOU for visiting -- come back and see me again!

Pat Richie said...

I think I will steer clear of Kate Spains fabrics in the future....I don't need the mess that resulted from this. Kate's lawyers were acting on her behalf, and if they were not communicating with Ms. Spain about the verbage, they should have been. I makes a LOT of quilts....I don't need the headache of designers/lawyers like this. I wish Ms. Spain the best of luck, along with her attorneys, in the future. I have no problem putting my name on this comment.

Anonymous said...

I am #4 person who commented. I am annoymous because none of the other options offered applied to me. My name is Patricia Stroud. I began designing in Jan. 2011. Mostly embroidery patterns in quilts. The only thing I can agree w/ Kate on is the copying of her fabric by a photographer to put on bags. Her response to the whole thing was not what a plan A response should be. She should have contacted Emily and talked to her. You only go to lawyers after trying to work out things in a peaceful manner. I have found quilters to be a very friendly and accomodating group. I got upset one time when one of my son's very awesome lighting photo was painted by a woman and she was selling prints of her painting of my son's photography. He talked to her and they worked things out and both were happy. Kate may I respectively suggest you and Emily talk. Each of you has something to say you are sorry about. I again say Kate you should send Emily some fabric and the 2 of you then show everyone else in the business how to fix the problem. Emily can credit you however you want and set it as an example of how you expect to be credited. I see no reason why you both can't work this out. It is what we do for others that counts in this world. make it happen!

Laurel said...

Quilting is an art. In the regard, do other art forms such as painting, have these types of problems? Maybe I'm making this too simple, but do artists who use paint to create their artwork have to credit all the manufacturers of their paint? What happens if I create a piece of art out of crayons? Should I credit the crayon creator? What if I create a piece of art using pictures out of old magazines? Am I required to credit the magazine and/or the photographer in my art?

What about clothing manufacturers? Are they required to credit the fabric designer, the button designer, the seamstress in the final product?

Why is the quilting industry being singled out on this issue? Or are there other industries that also have this issue? Just curious.

Beth D said...

Kate, you may have right on your side, but you've alienated a lot of people. I'm not a fabric designer and I rarely keep track of whose name is on the selvage. I, like many quilters, just buy it if I like it. Now I'm going to notice and no matter how pretty, I won't buy anything with your name on it. Threatening with attorneys just leaves a bad impression. I think in the long run you're going to lose more than you gain.

Trudy Carpenter said...

I agree with Beth D, I don't keep track of selvages either nor do I only buy certain designers. I will now watch out for Kate Spain and pass it by. But I will watch with interest for Emily's work. Keep your chin up girl, this too shall pass.

ann hermes said...

the blog saga continues

Unknown said...

Kate Spain's response was rather hollow. She never commented on why she was insisting on the books be destroyed. That being said, it was NOT all about the bags. Kate is avoiding commenting on that even thought it's the elephant in the room and she was trying to be the 500 lb gorilla.

She will certainly lose a lot of business because of this.

Hind site is 20/20 and it costs a lot sometimes too.

Linda Thielfoldt said...

The sad part about all of this is the whole art of quilting, the idea of sharing, the expression of creativity are now stifled because we all have to worry about someone suing us if we enter a show....or design a pattern etc. When I first started machine quilting I bought some stitching patterns from a well known designer - she had THE most restrictive use statement I had ever seen - you could only use the pattern 6 times before you had to buy another one - so it was an easy decision for me - don't buy any more of her patterns. A few years ago I made a striking quilt that won a blue ribbon at MQX. On the description of the quilt that hung at the show I listed the original pattern designer. A magazine picked up a copy of the quilt photo and printed it along with several other blue ribbon quilts and I got the most hateful threatening email from that designer that it scared me. She threatened me and was verbally abusive and yet had no facts about my actions. I HAD listed the designer, it appeared on the show placard, it IS on the label of the quilt and yet the magazine editor only published the photo of the quilt and my name. So even when you do all the right things there is still cause for concern. Every person that enters a national show (which I do very often) has a right to be concerned about this. And Kate no matter what you say now your intent was obvious. I will no longer purchase anything with your name on it and I would love to return the fabric I already own for a refund - it's just not worth the risk.