In last week’s post, we discussed some important copyright lessons learned from the the American Country Quilts case (last week’s post is here). This week, we’ll be discussing another interesting quilt case, Brown v. McCormick. The McCormick case not only gives us some great insights into copyright law, but also has an interesting back story.
The Brown v. McCormick Case’s Interesting Back Story
The Brown v. McCormick case involved the 1995 movie, How to Make An American Quilt (we’ll call it “Movie” for short; imbd info on the Movie is here), which is based on Whitney Otto‘s 1991 novel. In the Movie, graduate student Finn (played by Winona Ryder) spends the summer with her great aunt and grandmother, apparently for some quiet time to work on her thesis and to mull over a marriage proposal. Finn’s grandmother and great aunt belong to a quilting circle, which decides to sew a wedding quilt for Finn. Throughout the summer, Finn goes to the quilting circle and gets to know each of the quilters as they tell their respective life stories and reminisce about men, love and marriage.
The Movie was produced by Universal City Studios, Inc. and Amblin Entertainment, Inc. and they needed a technical quilt consultant. So, in 1994, Universal hired co-defendant Patricia McCormick, who is a quilter and was then president of the Southern California Council of Quilt Guilds. One of Patricia’s assignments was to obtain the quilts that would be used as props in the movie.
Because the script called for two specific quilts, Patricia had to have them made special for the Movie. She first tried having Universal’s art department make the quilts, but the quilts they made didn’t work out. So, Patricia got in touch with the plaintiff, Barbara Brown, to have her create the designs for the quilts. Barbara is a professional quilter and a founding member of the Uhuro Quilter’s Guild of Maryland (an interesting video of one of Uhuro’s quilt shows is here).
One of the quilts that the script called for was an African-American story quilt entitled “The Life Before.” The quilt was to have a series of blocks, each depicting a chapter in the family history of one of the film’s characters, Anna (played by Maya Angelou). So, Patricia, on Universal’s behalf, signed a contract with Barbara providing that Barbara would create the patterns for fifteen quilt blocks in exchange for $750. According to the agreement, though, Patricia and other quilters would chose the fabric for the quilt and sew the quilts. Importantly, the agreement also stated that Barbara would retain the copyrights to the quilt and block patterns. In keeping with this, the bottom right quarter of each block that Barbara designed carried the notation “© 1994 Barbara Brown.” Per the agreement, Universal was only authorized to create and display two prop quilts for use in the Movie.
The script also called for another quilt, Finn’s wedding quilt entitled “Where Love Resides.” That quilt was to be a unifying plot device in the Movie, with each of the quilting circle members sewing a block to be included in the quilt. The “Where Love Resides” quilt had sixteen blocks depicting life’s milestones like marriage. Patricia and Universal’s production team designed most of the blocks for the “Where Love Resides” quilt. But one of the blocks in the quilt, the “Marriage Block,” was copied (with some variation) from one of the blocks that Barbara had designed for the “Life Before” quilt (the “Wedding Block”).
Barbara Brown’s Complaint
Per the parties’ agreement, Barbara didn’t have a problem with Universal using the “Life Before” quilt in the Movie. But she did have a problem with Universal’s and Patricia’s ancillary displays of the quilts. For example, Patricia displayed the “Life Before” quilt at quilting exhibitions and on TV programs. Universal also put the “Where Love Resides” quilt design on tee-shirts and tote bags and it also appeared, along with the “Life Before” quilt in the tie-in book, Where Love Resides. Even though Universal’s team had designed most of the “Where Love Resides” quilt, it still included Barbara’s “Wedding Block.” For this reason, Barbara also had a problem with Universal’s display of the “Where Love Resides” quilt in the Movie and in a painting and prints by John Simpkins.
Barbara filed a copyright suit based on these unauthorized public displays of the quilts. Patricia, though, disputed Barbara’s claims and contended that she was a joint creator of the quilts and held the copyright rights to the “Where Love Resides” and the “Life Before” quilts. In fact, Patricia had filed copyright applications for both quilts in January of 1996. In addition, Barbara and Patricia had worked together with C&T Publishing to have photos of the quilts appear in the book, Pieces of An American Quilt. Although Barbara agreed to display the quilt photos in the book, she hadn’t agreed to display the quilts at craft shows and in promotions for the book.
So, the court had a lot of work to do to figure out whether Patricia/Universal had actually infringed Barabara’s rights. First the court noted that successful copyright plaintiffs must demonstrate: 1) ownership of a valid copyright and 2) unauthorized copying of the “original” elements of the work at issue.
Because Barbara had had actually registered the copyrights for the fifteen blocks included in the “Life Before” quilt, she was able to easily show ownership of valid copyrights in her work. Even though the Movie script gave Barbara some guidance with regard to the block designs, the court found that the descriptions were vague and that Barbara’s designs are “original,” and thus protected by copyright.
Determining whether Patricia/Universal had actually copied Barbara’s “Wedding Block” design, though, was a bit trickier for the court. To show unauthorized copying, a copyright plaintiff must show copying ‘in fact’ and also that there is a “substantial similarity” between the copy and the original. Sometimes these two requirements merge because plaintiffs are permitted to use circumstantial evidence to show copying. For example, the law allows a plaintiff to establish copying by showing that the defendant had access to the original work together with demonstrating that there is a “substantial similarity” between the original work and the copy.
Barbara easily showed that Patricia/Universal had access to the “Wedding Block” design. Also, in one of the books, Patricia had admitted that the “Marriage Block” was Barbara’s design. To find that infringement had occurred, however, the court also had to consider whether the two blocks were “substantially similar.” To do so, the court first emphasized an important rule:
Whether a defendant’s work is substantially similar to a plaintiff’s work and infringes a copyright depends upon similarity of expression rather than similarity of idea; the latter is not protected by copyright law.
Another important rule that the court noted is that, in copyright cases, expert testimony isn’t required to show that two works are “substantially similar.” This is because two works are “substantially similar” when an ordinary observer would conclude that one work was taken from the other work. The court also reiterated that the “substantial similarity” test focuses on the overall similarities of the works in question, not on their minute differences. Thus, an exact reproduction or near identity of the copyrighted work is not required to show infringement.
Patricia’s “Marriage Block” was in fact a bit different than Barbara’s “Wedding Block.” Each of blocks included a crow and a couple holding hands, but Patricia reversed the alignment of the crow in the design and added a sun. The court found, though, that these weren’t significant differences because the majority of Barbara’s “Wedding Block” design had been copied by Patricia’s “Marriage Block.”
This meant that all of the unauthorized displays of the “Marriage Block” were infringing, including display of the “Where Love Resides” quilt in the Movie, on tee-shirts, tote bags and in the tie-in book Where Love Resides. The court also found that Patricia wasn’t entitled to show the “Where Love Resides” quilt on TV programs or at quilt shows.
The John Simpkins prints didn’t infringe Barbara’s copyrights though. That’s because the “Where Love Resides” quilt- and thus the “Wedding Block”- wasn’t shown in great detail in the painting and prints, which included many other compositional elements. For example, in the prints/painting, the quilt occupies only a small part of the center of the composition, which also includes a scene with large house, the sky, mountains, apple trees, a white picket fence, and a van parked on a road.
It should be noted that Patricia had no prior legal training and didn’t realize that she had created a copyright problem. Noting this, the court found that the infringement was not willful.
What About Joint Authorship?
An important last issue in the case involved Patricia’s claim that she and some other quilters were joint authors of Barbara’s quilt designs. Remember that Patricia and some other quilters had picked out the fabric and were the ones who actually sewed the quilts.
We’ll devote an entire future post to the issue of joint authorship, but for now we’ll just point out that the court in this case disagreed with Patricia’s contention that she was a joint author. The court noted that there was a contract in this case that included very specific contractual provisions. In particular, the parties’ contract gave Universal/Patricia permission to use the “Wedding Block” design in two props of the “Life Before” quilt. The contract also contemplated that Barbara would contribute the patterns/designs and that others would assemble the quilt.
The court rejected Patricia’s joint authorship claim because, otherwise, the parties’ contract would have no meaning. This is because joint authors of a copyrighted work generally have the right to license the work to other parties without getting their co-author’s permission. After considering these factors, the court reiterated that the contract gave Patricia/Universal permission to use Barbara’s design solely for two copies of the “Life Before” quilt. Any other use required Barbara’s permission.
Some Copyright Lessons From the Brown v. McCormick Case:
♥Quilts and quilt patterns aren’t necessarily treated like apparel (e.g. dresses) when it comes to copyright infringement. Although it can be argued that quilts, like dresses, have some functional aspects, they are generally treated more like collectible art and therefore enjoy more copyright protection than most apparel. Also, quilts usually embody an artistic design that is more akin to fabric designs, which are generally eligible for copyright protection.
♥Copyright is actually a bundle of rights. That bundle includes, among other rights: 1) the exclusive right to publicly display the copyrighted work; 2) the right to make copies of the work; and 3) the right to distribute copies of the work. For example, in the McCormick case, Universal did own the two prop quilts. But this did not give Universal the right, without Barbara’s permission, to make copies of the quilts/blocks or to publicly display the quilts. This is analogous to when we buy a book. Buying and owning the physical book doesn’t give us the right to make or sell copies of the book.
♥Agreements are very, very important. In general, the law respects the right of two competent adults to enter into a contract of mutual interest. As long as an agreement doesn’t violate the law, courts generally try to honor the agreement’s terms. For example, in the McCormick case, the court noted that the parties had agreed that Universal was to only use two copies of Barbara’s quilt as props in the Movie. Any other use/public display of Barbara’s quilt was unauthorized because, otherwise, it would nullify the contract.
♥Winning a copyright case doesn’t always result in a big payoff. In the McCormick case, the court awarded Barbara only about $14,000. This was in part because the books and movie at issue hadn’t made a profit.
♥Again, we see that a copyright registration is very valuable. It helps establish a rebuttable presumption that you own your work and that your work is original.
♥An exact reproduction or near identity of a copyrighted work isn’t required to show infringement. For example, in the McCormick case, Patricia’s “Marriage Block” infringed Barbara’s “Wedding Block” even though there were some differences in the two designs. This is because it’s the overall similarity of the works that is important, not the minute differences.
♥Copyright protection extends only to the particular expression of an idea and not to the idea itself. For example, in the McCormick case, the idea of using a crow and a couple holding hands in a quilt design was itself not protected by copyright, but Barbara’s particular expression of that idea (e.g., her particular depiction of and placement of the crow and the couple) was protectable.
For all of our quilter friends, we’ll leave you with a little bit of movie trivia about the Movie’s quilting scenes. According to Planet PatchWork’s review of Pieces of An American Quilt, real quilters were enlisted to help teach the actors how to look like they were really quilting. The review also claims that Patricia helped Ann Bancroft “rescue a UFO” (for the non-quilters, “UFO” means “unfinished object”) that Anne had started in another film and make it into a finished quilt. (for an interesting real life “UFO” story see this link). The review also notes that Patricia got a lot of flack from quilters world-over about the last scene in the Movie where Finn/Ryder runs though an orange grove while dragging the beautiful white quilt on the ground. As Patricia explains it, Winona Ryder is very petite, the quilt was 108 inches long and the scene called for Winona’s character to run as if nothing else mattered- not even getting a beautiful white quilt dirty…
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