Wednesday, July 11, 2012

Wants to Use Victorian Paper Scraps

Dear Rich: I am a fashion designer with a small clothing label. I'm interested in using some 'victorian paper scraps' (they are printed onto the fabric) and then I plan in my turn to stitch them on some garments in my clothing collection. They will be sold commercially and as I don't want to step on any ones toes nor break any copyright laws or infringe in trademarks. I have asked the seller if the prints are over a 100 years old and I can use them commercially and she says they are? Is there any way that I can find out to be certain and what would you advice me to do. I just want some piece of mind when using them, knowing that I won't get into any trouble. The short answer to your question is that your activities -- cutting up and restitching of existing fabric -- won't violate any laws. Your activities are protected under a principle known as the first sale doctrine. You would only run into a problem if the images were protected under copyright (which we seriously doubt) and you were duplicating those images (that is, making copies). BTW, we talked about the first sale doctrine in a previous post.
Why don't we believe these scraps are protected by copyright?  According to this site, Victorian paper scraps appeared at the beginning of the 19th Century initially in black and white or color (if hand-tinted). Color printing of these scraps began in the late 1930's. Because of these dates, chances are very strong that these works are in the public domain (see this chart for more details) either because copyright expired or was never renewed. In any case, determining whether copyright exists is an academic exercise as your use is permitted by the first sale doctrine and does not violate copyright law.