Are Patterns and Instructional Texts Copyrighted?

Are patterns and instructional texts copyrighted?

Designers, including those of clothing, footwear, and accessories, face difficulties in protecting their intellectual property in Russia. There is still no consensus on how to effectively safeguard and defend designs. The question of when copyright can assist designers remains open.

The debate about whether the design of clothing, footwear, and accessories is subject to copyright has been ongoing for decades, not only in Russia but also worldwide. There is an opinion that in Russia it is still not worth relying only on copyright, but it is better to play it safe by registering the design as an industrial design or a three-dimensional trade mark, as the judicial practice has not yet developed criteria for when a clothing design can be considered a work of design and, as a result, be protected by copyright.

In the absence of a developed judicial practice, each new court decision on this issue is considered to be a practice-forming decision. Recently, the Moscow Arbitration Court resolved a dispute regarding the infringement of copyrights on patterns for clothing and texts describing the process of cutting, modeling, and sewing. This case (No. A40-60319/2018) is one of the few where the court attempted to answer the question of the criteria for the protectability of a design.

The Essence of the Dispute and the Court's Position

Grasser LLC offers online courses on cutting and modeling clothing. The company filed a lawsuit against Olga Stepanova, the developer of the Cut&Sew Base course, and BidFox LLC, claiming that its rights had been violated because the workbook for the Cut&Sew Base course, which also focuses on cutting and modeling of clothing, contains borrowed texts and patterns.

The plaintiff requested the court to award compensation of 1,700,000 rubles to the defendants and to require them to remove the Cut&Sew Base course from their websites.

The defendants objected to the claim and pointed out that the patterns and texts that the plaintiff claimed to be infringed were not protected by copyright in the first place. The texts were descriptions of standard procedures for cutting and modeling garments, while the patterns were drawings that could not be created in any other way. Additionally, the developers of the Cut&Sew Base course argued that the texts and patterns were not identical, and the similarity in certain words and phrases was due to the use of standard industry terminology.

The Moscow Arbitration Court agreed with the defendants' position and completely denied the claim, justifying its decision as follows:

When analyzing whether a particular result is an object of copyright, courts should take into account that only a result that is created through creative work is an object of copyright. The Civil Code of the Russian Federation does not provide a definition of the terms "creative work," "result of creative activity," or "work." However, based on the generally accepted understanding, creative work refers to intellectual activity that results in the creation of an intellectual product that was previously unknown. Therefore, a work created through creative work possesses the characteristics of novelty and originality.
The idea itself, the concept, and the organizational solution (in this case, the idea of cutting a specific product, modeling, and eliminating cutting defects) are not protected by copyright under paragraph 5 of Article 1259 of the Civil Code of the Russian Federation (but can theoretically be protected by patent law or as a trade secret (know-how)). At the same time, the form of expression of an idea (text describing how to cut, model a certain product and a pattern) can theoretically be protected by copyright, but only if such a form of expression (text and pattern) is created by creative work, i.e., it is new and original in terms of the presentation of the material.
The plaintiff's texts do not meet the criteria of a work as an object of copyright (novelty, creative nature of the work, and originality (uniqueness, unrepeatability) of the work). The plaintiff's texts consist of standard descriptions of typical actions for cutting, modeling, and eliminating the shortcomings of the cut.
A pattern is a part of a future sewing product made of paper, tracing paper, fabric, or other materials. Essentially, a pattern is a drawing. The pattern also contains the necessary information (the drawing shows the construction lines (side lines, darts, the front, and the middle of the garment), the direction of the base thread, the waist line (points T, T1, T2), the hip line (points B, B1, B2), and the bottom line (points H, H1, H2). These symbols (T, B, and H) are also standard and are used in all textbooks on cutting and modeling.
The plaintiff's patterns are drawings of patterns of the most common and simple models (pencil skirt, T-shirt skirt, mermaid skirt, raglan sleeve, one-piece sleeve). Similar instructions for cutting and modeling such models, along with almost identical patterns, are included in most textbooks due to the technical impossibility of constructing patterns in any other way.
The product models (pencil skirt, T-shirt skirt, mermaid skirt) are not original, they are the simplest and most common product models, and the plaintiff's patterns (i.e., drawings, blueprints) are not creative, they are not original in their execution (for example, they are not executed in original colors or in an original manner).
A comparative analysis shows that the defendants did not copy the plaintiff's texts and patterns. In the texts of the plaintiff and the defendants, the main idea and the sequence of actions required for cutting and modeling a product may coincide (which is inevitable, as cutting and modeling require specific actions in a specific sequence and do not allow for variation), but the form of expressing this idea differs — different words and sentences are used. The coincidence of certain words and expressions is due to the standard terminology used in the industry. This argument is supported by the fact that similar instructions for cutting and modeling garments can be found in other textbooks.

The plaintiff did not agree with this decision and appealed it to the court of appeal, this time arguing that the court of first instance should have considered the entire educational material as a composite work (Article 1260 of the Civil Code of the Russian Federation). However, the court of appeal upheld the decision of the court of first instance.

Analysis of the Court's Position

The court pointed out that patterns of the most basic models (for example, a sun-shaped skirt, a pencil skirt or a flared trousers) are not protected by copyright, which is fair. Patterns of these products are contained in all basic textbooks on technology and magazines dedicated to cutting and sewing. Indeed, the pattern of a pencil skirt cannot be constructed in any other way, as otherwise, it would already be some other skirt.

At the same time, it seems that patterns of non-standard and unusual models of sewing products deserve legal protection. Thus, individual unique design solutions, such as a dress with an unusual train or three sleeves, can be considered as objects of copyright. In this case, the design of the product itself, its sketches, and its pattern will be protected, and copying them will be illegal.

It seems that the same logic should be applied to texts describing algorithms. If a certain algorithm or sequence of actions is described, standard terminology is used, and creative work is not invested in the creation of the text, then such a text will not be protected as an object of copyright. However, for example, if even basic actions related to cutting and modeling are described in an original way (for example, in poetry), then the author may be eligible for protection.

However, there is another issue at hand. Since copyright objects are not subject to registration and do not undergo any examination (unlike, for example, trade marks and industrial designs, which are legally protected by the decision of Rospatent after an examination for protectability), the question of whether a certain text or pattern is an object of copyright will be decided by the court when the dispute comes before the court.

This circumstance does not contribute to certainty: how can you know whether to file a lawsuit against a similar design? What if a designer believes that their design is highly original and even unique, but the court disagrees? How can they assess their chances of success and decide whether to take legal action?

At present, the only viable strategy is to analyze existing legal practices. Currently, the courts' approach is that original product designs can be protected by copyright. Therefore, before filing a claim for copyright infringement of a product design, it is important to answer the following questions:

How was the design created? What inspired the designer? How much does the created design differ from those that served as a source of inspiration?
Are there similar models on the market?

In the event that the design has no analogues and the defendant cannot demonstrate to the court that this model is widespread and has been produced for a certain period of time by various companies (as the defendants in the above case managed to do), the claim has a higher chance of success.

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Olga Stepanova, Developer of the Cut&Sew Course:

When I started creating my project, I did not think about the legal side of the issue at all. I used classic methods, popular books, and the knowledge and skills that students learn in universities. Everyone did this, and some schools even took pictures of famous brands, published them on their websites, and sold patterns of these dresses to customers.

At first, we created an instruction for students using pictures from popular old textbooks and books. Later, we drew our own illustrations with a designer, changing the details and completely reworking the structure.

It seemed that at the beginning of the journey, it didn't matter, because later we corrected and replaced the pictures and excerpts from the old textbooks with our own. However, this was the reason for our competitor's lawsuit. In fact, our competitors accused us of copying their texts and illustrations, which they themselves had once copied from old textbooks and books. We had to go through the archives, search for these classic textbooks in libraries, and prove to the court that the illustrations were taken from these classic textbooks and not from our competitor, and that they were standard patterns and descriptions found in almost all textbooks, which means they were not subject to copyright protection.

Currently, I am working on a new project, and I now understand the importance of carefully designing illustrations, texts, graphics, videos, and photos from the beginning. You should only receive payment for your product on the official account of the company. It is also advisable to register a trade mark immediately. You should not hope that someday in the future you will correct these «little things». It is they who can destroy everything that you have built in your business with sweat and blood.