Thursday, October 9, 2014

Can I Use Carpet Pattern from The Shining?

Dear Rich: I am an independent knitwear designer, and I designed a caplet using the brown, orange and red carpet pattern from the Shining. Initially I did it entirely for personal use as part of costume. However now that it is finished, I'd like to make the pattern available for sale to other knitters, who may or may not use the iconic colors, but like the the design and want to make their own. I'm at a loss though on how to navigate this issue legally. From reading your blog I understand that movie costumes are not covered by copyright, but are set details like the carpet, or other furniture patterns or background art covered by either copyright or trademark laws? Would this be a trademark issue? Would the copyright/trademark apply if the design was made in different colors? And now that Stanley Kubrick has passed away how do I determine who to contact for permission, if needed? We'll spare you the lengthy legal explanation regarding derivative rights (yes, some elements within films are separately protectable) and protection of fabric patterns (yes, copyright protects the designs) because it appears as if the owners of the film are not claiming (or enforcing) proprietary rights for the carpet. How else to explain its use on fabric patterns, earrings, as well as sweaters, cardigans, scarves, ski masks, door mats, and area rugs. And of course, the carpet was also reproduced in another movie. (We don't see any indication of proprietary markings on the product pages so we assume these are not licensed uses.) Most likely the owners of the film copyright are not asserting rights and you should be free to use the design as you wish.

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