LEGALLY SPEAKING

Paul Sugden on Copyright, Employee rights and the Textile Creative

Recently an employed pattern maker asked me as follows: "I understand that when the company pays me for a knitting pattern I loose any right to get credit for my writing of the pattern, and the pattern is published under the company name. Can the company publish those patterns as being by someone else (i.e. the cover states the book is by "the designer" of the garments), with no reference to whoever actually wrote the technical stitching pattern?"

This is an interesting question, as ultimately the determination of this issue may depend on the wording of the employment contract, and whether such things are usual in the industry. But what about this issue from a copyright perspective? The stitching pattern of knit one purl one, is a literary work which translates the designer's garment creation into form for mass production. From the copyright perspective what is the answer?

Copyright will view the original design, if in a 2-dimensional form as an artistic work. In lay language we would consider the knitting pattern as a translation or adaptation of the original artistic work. However, the Copyright Act does not consider artistic works as falling into works that are translated or adapted; translations and adaptations in s10 of the act apply to literary and dramatic and musical works. So we have a loop hole in the legislation.

We need to look at this issue then from the first principle of copyright law - copyright is aimed at protecting the creativity of the creator, in this case the artistic work of the designer. So if the pattern writing is considered a technical skill then writing the design down like a draftsman copies things out, or the way he draws an architect's plans into scale versions etc - is not the subject matter of copyright. Rather it is a technical service of transcription that is not the creation of the work itself.

In such cases the accreditation and recognition of the work as an author is not then falsely attributed, as the designer of the garment made the garment, and the knitting pattern is producing the designer's garment. Therefore there is no wrong committed (from a copyright perspective) by the company stating on the cover, "design by Esmarelda Thargaminda."

The best resolution of any dispute in this area is for the pattern producer ask the company for a byline in the book noting that the knitting patterns for garments by designer Esmarelda Thargaminda were written by X. This ultimately resolves the issue through contract without needing expensive litigation.

If the knitting pattern is a literary work completely separate to the artistic work then the issue becomes more complex, and an issue of accreditation and false accreditation can arise if the implication is that the knitting pattern for the garment was written by Esmarelda Thargaminda when it is was not. This leads to issues of false accreditation of authorship which is an issue of moral rights (s189 -195AZR).

Moral rights are rights separate to the economic rights of copyright. The economic rights allow an employer to own the copyright and to reproduce and sell the patterns made. Moral rights are the rights personal to the creator of the literary, dramatic, musical or artistic work (a company is not a person for this purpose). These rights include the right of integrity, attribution and the right against false attribution.

The right of attribution means the author of a work should be accredited when the work is reproduced in a material form, published, performed or communicated to the public. The right against false attribution means another person's name (not the creator) should not be connected to the work.

Ultimately false attribution requires the creator to have a right of attribution - and the right of attribution is subject to an exception in s195AR stating that there is no infringement of a right of attribution of authorship if it was reasonable not to identify the author. In the above scenario therefore, if the industry norm is not to attribute the writer of the pattern, or that given the purpose of the work and all the surrounding facts it is not reasonable to attribute the author of the written work, then there is no breach of the right of attribution and there is no false attribution.

The alternative option that is used is that the employee gives written consent to the act or omission by s195AWA which can be done in the employment agreement. This consent though must be freely and genuinely given by the author and not under duress or through false or misleading statements.

What if we change the scenario to one of being a freelance pattern writer rather than an employee of a company? Ultimately the moral rights and copyright issues weigh more favourably to issues of asking for an accreditation, but the same arguments stated above apply to a freelancer as an employee. Ultimately this is an issue for contractual negotiation, and asking for a byline or acknowledgement is not a sin, nor is the company giving a byline going to cause them to go bankrupt or commit a sin.

Ultimately it is an issue of negotiation and agreement between the parties involved. I hope that in the future we will see more bylines giving accreditation rather than fewer, but it is an issue that can be negotiated in and out. Be aware and don't be afraid to ask. You may be very surprised.