Knitting and Intellectual Property snippet

The following is a snippet (okay rather long section from a rather long paper) on knitting and intellectual property, describing the public domain elements of knitting.

Unventing and Stitch Dictionaries: Traditional Knowledge, the Public Domain, and Prior Art

 

“I don’t think anyone actually invents anything at this point since knitting has been around for so long.”[1]  “Nothing is created without inspiration from something that came before it.”[2] “Good luck with proving it’s not been done before in this [centuries]-old craft.”[3] “…who would we attribute stockinette stitch to?”[4] “I’m not sure how one would draw the line here, especially since so many knitting methods throughout history fall under the category of Zimmermann’s ‘unventing’—creating things that many other knitters have potentially created before without awareness of what those others have made/done/etc.”[5] “Elizabeth [Zimmermann]’s term ‘unventing’ is valid—there are only just so many things one can do with sticks and string, and independent invention happens all the time.”[6] “Those methods I’m sure have existed before and people seem to unvent them all the time.”[7]

Survey responses often referred to the long history of the craft, particularly when distinguishing between elements that were “okay” to copy, and elements that were not. When asked about stitch dictionaries (reference books filled with different stitches and instructions on how to make them, to be further discussed in this section), respondents often pointed out that compilers of stitch dictionaries themselves took from historical sources and often did not differentiate between traditional knowledge and more recent innovations. Elizabeth Zimmermann’s “unventing” was also mentioned several times in the survey responses.

Zimmermann, author of the Knitter’s Almanac and Knitting Without Tears, is a well-known figure in the knitting community.[8] Her New York Times obituary hailed her as having “revolutionized” knitting.[9] Indeed, Zimmermann is known for inventing groundbreaking methods such as the percentage system, an innovation recognized by more than one respondent as a good example of a method clearly attributable to a single individual. Ironically, Zimmermann rejected an understanding of innovation and creativity premised on lone pioneering individuals—at least, with respect to knitting. Rather than use the term “invent” for her innovations, she instead coined the term “unvent.” (“Invented sounds to me rather pompous and conceited.”[10]). An unvention was the discovery of something that turned out not to be new (perhaps, the same as being preempted by prior art?):

But unvented—ahh! One un-vents something; one unearths it; one digs it up, one runs it down in whatever recesses of the eternal consciousness it has gone to ground. I very much doubt if anything is really new when one works in the prehistoric medium of wool with needles. The products of science and technology may be new, and some of them are quite horrid, but knitting? In knitting there are ancient possibilities; the earth is enriched with the dust of the millions of knitters who have held wool and needles since the beginning of sheep. Seamless sweaters and one-row buttonholes; knitted hems and phoney seams—it is unthinkable that these have, in mankind’s history, remained undiscovered and unknitted. One likes to believe that there is memory in the fingers; memory undeveloped, but still alive.[11]

Zimmermann’s “unventing” must be distinguished from the Pioneers/Tweakers typology used in The Knock-Off Economy. For Raustiala and Sprigman, Pioneers “come up with something radically different from anything that has been done before,” while Tweakers “improve ideas and products by refining or reconceptualizing what others have done.”[12] But Zimmerman’s “unvention” subverts this typology entirely—an unventor does not come up with something “new,” but neither do they merely refine and reconceptualize an existing idea. Unvention is the act of dipping into an unconscious public domain. Knitting is therefore both the conscious reappropriation of traditional knowledge and the reconstitution of lost traditional knowledge.

This understanding of intellectual property, innovation, and creativity in knitting as situated within a deep historical background and expansive public domain is also implicitly found in many of the stitch dictionaries. A stitch dictionary is a reference book for creating different kinds of textures, lace, cables, and other elements of knit fabric. The entries usually include a photograph, a name (sometimes made-up by the author, sometimes a traditional name for a traditional stitch), and instructions. The instructions are often written out in short-hand, although some stitch dictionaries will substitute (or include) a chart. (I will be referring exclusively to knitting stitch dictionaries, although crochet stitch dictionaries and embroidery stitch dictionaries also exist).

Stitch dictionaries are meant to be used. Knitters are meant to knit the stitches, experiment with them, and create derivative works with them. The instructions in stitch dictionaries are often copied by designers—if not verbatim, then translated in a short-hand or a chart form that the designer prefers. Stitch dictionaries present an interesting conundrum to an IP-maximalist-inclined knitter: if a sequence of instructions is protectable, and a stitch is truly original (this is occasionally claimed), how can one resolve the tension between what stitch dictionaries are for, and the intellectual property rights that the author has in that sequence of instructions?

Indeed, many survey respondents took care to disclaim IP protection for stitches, even if they tended towards a more maximalist approach to copyright law. (Although at least one respondent chose to take their understanding of the law to its logical, though onerous conclusion: “While stitch patterns are not protected by copyright, the written instructions are protected by copyright. If the instructions are included in your design, permission for use should be obtained.”[13]). The disclaimer for IP protection appears to often be limited to just “stitches” (a discrete category likely informed by the prevalent use of stitch dictionaries). This should be distinguished from my analysis in the last section, which suggested that all sequences of pure instruction are not protectable.

Other survey respondents suggested that by virtue of appearing in a stitch dictionary, the stitch was fair game from a moral/normative standpoint, particularly since (1) many stitch dictionary authors were mere “compilers” rather than designers, (2) many stitches appeared in multiple stitch dictionaries, thus suggesting that they had fallen into the public domain, and (3) there was an implicit understanding that a stitch dictionary would be copied (“…if you’re putting something in a stitch DICTIONARY, you know people are going to be using it to make their own things”[14]). Some survey respondents were troubled by the distinction between “common” stitches (e.g., stockinette, ribbing, seed stitch—stitches that are often taught at a basic level and passed down orally even today) and “unusual” stitches. Several drew a comparison to actual dictionaries: “I would no more give credit to the compiler of a stitch dictionary than I would give credit to Webster for using the word in a dictionary to write an essay,”[15] suggesting that for these respondents at least, stitches constituted part of the shared language of knitting, and had to be considered a common property for the community.

Perhaps the best-known stitch dictionary author is Barbara Walker, who first published A Treasure of Knitting Patterns in 1968. The volume was followed by many others. Barbara Walker was mentioned by name by 8 different survey respondents when answering the question on stitch dictionaries. No other stitch dictionary author was explicitly named. Walker is one of the few stitch dictionary authors that is credited by the respondents as having actually invented some of the stitches in her books. Walker published her original stitches alongside traditional stitches. The latter she seems to have discovered through original research (“I collected patterns from magazines and old books, even making a special trip to the Library of Congress in Washington to go through everything on knitting in their dark, dusty, catacomb-like stacks”[16]).

In the introduction to her third stitch dictionary, Walker claimed that that book was mostly of her own creation, unlike the previous two books, which were mostly “traditional patterns, passed down through generations of knitters in many parts of the world.”[17] Furthermore, this book did not merely contain original patterns, but also original methods or techniques: “certain knitting operations are combined in unusual ways, to make shapes that have never before translated themselves into a knitted fabric.” But she also qualifies the innovativeness of her contributions. “Taken individually, however, these knitting operations are standard ones that almost every knitter has used at one time or another. There is nothing in this book so radically new that it would require special instruction or demonstration.” Walker then goes on to encourage the use of her new stitches, “it is my hope that some of the newborns offered in this book will bring pleasure to fellow knitters, who will therefore graciously grant them long and useful lives.”

In the context of the introductions to her other books, Walker’s hope for the future of her new stitches is a hope to be situated among the other traditional, historical stitches. She wrote in her second book:

Anyone who loves knitting—or any other form of needlework—should be glad to be alive in this time, which rivals or even surpasses previous ‘great periods’ of creativity in the field. The traditions produced in such periods are still with us. The patterns that grew out of them are still available; many are here, in this book. Use these patterns to refine and embellish your own ideas, and you become one of the makers of the world. Your hands too can hold and transmit the legacy of one of civilization’s most beloved arts.[18]

In short, Walker’s hope is for her stitches to take their place in the vibrant public domain of knitting’s traditional knowledge, and to be transmitted into the future through derivative works. (Note that this does not mean that Walker would eschew moral rights like attribution, which some survey respondents claimed would be appropriate if a designer used one of Walker’s original stitches in a pattern; neither have these aspirations resulted in free versions of her stitch dictionaries).

So far, it seems like Walker’s hope has come true. Use of Walker’s stitch dictionaries in the creation of knitting patterns is so pervasive, many survey respondents complained about overreliance on them, often calling it “lazy design.”[19] At least one survey respondent named names, “I think it’s cheesy to publish a book of ‘scarf patterns’ (I’m looking at you, Ocean Breezes) when the entire thing is stitches from the Walker treasuries knit up as scarves.”[20]

Prevalent use of traditional knowledge (as transmitted by people like Barbara Walker) limits the protectability of many works in this pool. For example, the [pattern name redacted] (the pattern described earlier in this paper) is also a likely beneficiary of Barbara Walker’s work (and if not directly Walker, then another stitch dictionary). The lace scallops around the edge of the shawl are created with a stitch that Barbara Walker named “Fan Shell,”[21] a variation on “the Feather and Fan,” which is described as a “famous old Shetland pattern . . . probably familiar to every knitter in one or another of its unnumerable forms. . . . It is said that in the Shetland Islands no two families of knitters work the pattern alike.”[22] While the creator of the [Pattern] did not lift Walker’s instructions verbatim, the copying is still evident. The [Pattern]’s edge does not even tweak the numbers to make the Fan Shell bigger or smaller: it is the very same set of actions in a sequence. The other elements of the shawl are also commonly used scènes-à-faire in knitting: the stockinette (the most common fabric) center, the picot edge binding. But of course, copyrightability is not just about the constitutive elements, but the work as a whole. Yet even that is problematic: these elements have been arranged into a triangle shawl, which is both a form and a method of creation and arrangement that is also well-known, long-standing, and possibly a scène-à-faire in itself.

For similar reasons, the [Pattern] would not qualify for a design patent—there is prior art for every aspect of the design. The use of traditional knowledge in knit design can undermine both claims to copyright and patent.

An examination of an old picture of the historical Shetland knitting industry reveals square shawls with feather-and-fan edgings drying in the sun.[23] Fold one in half (as was the custom with these shawls), and it would look much like the [Pattern] (or indeed, any of the many, many shawl patterns with plain centers and wavy lace edgings). The [Pattern] is a revival (conscious or unconscious) of history, a retransmission of traditional knowledge. A monopoly on such a retransmission would not make sense. In this context, Walker’s words seem particularly apt: “Your hands too can hold and transmit the legacy of one of civilization’s most beloved arts.”


[1] Survey response by a designer, on file with author. Interestingly, this designer appeared to be on the IP maximalist end of the spectrum, as far as knitting patterns are concerned. They claimed ownership over a very expansive definition of their design (“my design in its entirety is covered. Entirety being the silhouette, yarn weight, color, and design details and how they’re all put together,” though she did disclaim any right over “the individual parts, like a stitch pattern”) and when asked to describe the ideal intellectual property framework for knitting, described a framework that would grant them continuing control over the finished product created with the pattern.

[2] Survey response by a knitter who chose to identify themselves as Julia, on file with author.

[3] Survey response by a knitter, on file with author.

[4] Survey response by a knitter, on file with author.

[5] Survey response by a knitter, on file with author.

[6] Survey response by a designer who chose to identify herself as Susan Sayre, on file with author.

[7] Survey response by a knitter, on file with author.

[8] For example, on Dec. 10, 2013, a search on the Ravelry forums for the exact phrase “Elizabeth Zimmermann” (which would omit hits on just “Zimmermann,” the popular appellation “EZ,” or misspellings of her name) produced 256 pages of results.

[9] Douglas Martin, E. Zimmermann Is Dead at 89; Revolutionized Art of Knitting, New York Times (December 12, 1999), http://www.nytimes.com/1999/12/12/us/e-zimmermann-is-dead-at-89-revolutionized-art-of-knitting.html

[10] Elizabeth Zimmermann, Elizabeth Zimmermann’s Knitter’s Almanac (1974), at 74.

[11] Elizabeth Zimmermann, Elizabeth Zimmermann’s Knitter’s Almanac (1974), at 75.

[12] Raustiala & Sprigman at 132.

[13] Survey response by Knitter #16, on file with author.

[14] Survey response by Knitter #89, on file with author.

[15] Survey response by a knitter who chose to identify themselves as Alean, on file with author.

[16] Barbara G. Walker, A Fourth Treasury of Knitting Patterns (reprinted 2000), at xi.

[17] Barbara G. Walker, A Third Treasury of Knitting Patterns (reprinted 1998), at xiii.

[18] Barbara G. Walker, A Second Treasury of Knitting Patterns (reprinted 1998), xxiii (emphasis added).

[19] See, e.g., survey responses by C. Bolger and Knitter #139, on file with author.

[20] Survey response by Knitter #124, on file with author.

[21] Barbara G. Walker, A Treasury of Knitting Patterns (reprinted 1998), at 206.

[22] Id. at 205.

[23] A Short History of Shetland Knitting, Spirit of Shetland, http://www.shetland-knitwear.com/history.html.

[You make have noticed that I redacted a pattern name. That’s because I feel weird about naming a pattern that the author has slapped a copyright notice on, and then identifying it as being primarily composed of public domain elements. Still trying to figure out what to do about that if I make the whole paper public].

5 thoughts on “Knitting and Intellectual Property snippet

  1. Oh, thank you for this. I wish that we could all just agree that attribution is enough but I do understand that there are those are that trying fairly to make a living from knitting.

    I am a retired lawyer (completely uninterested in Intellectual property) and a knitter for many decades. I focus now on knitting for little kids, specifically for distribution by a friend who volunteers at a food pantry in a disadvantaged neighborhood. I get to try out a lot of techniques and yarns that way. Recently I donated an item for a tax-exempt organization’s auction–only to read later that I should have gotten permission from the designer first. Yeah right; in somebody’s dreams.

    One question I have is how to characterize the various aspects of the process. I have found no standard vocabulary on this and the only attempt seems to be in this area of copyright. You, for example, refer to the pattern “sequence”; in footnote 1, there is the use of “silhouette”; I have used the term “structure” and heard also “garment architecture. What would you call what Ann Budd has in her books of patterns? (Terms like basic or rudimentary aren’t helpful in the context of distinguishing Budd from, “stitch patterns”; but stitch patterns doesn’t seem adequate to include [which arguably it does] cabling, stranding intarsia, etc.)

    • Oh boy, I haven’t thought about this paper in a while, but I think it’s probably time for me to revise it and send it out into the world, especially after the Federal Circuit decision in Oracle v. Google, where the software code in question I think has really fascinating parallels with knitting patterns and instructions. Let me know if you want to see the full draft of the paper? It needs work but as a retired lawyer you might enjoy it.

      • Thanks for your offer of the Oracle opinion but (1) I can still get circuit cases readily and (2) yesterday, after only being able to get through half of a 7th Cir. opinion my daughter argued (and won) that definitely was my quota for this year. Back to knitting:

        Cf. Nicky Epstein’s Floral Bouqet at p. 131 of Knitting on the Edge (copyright 2004) with Cherry Basket at p. 61 of the Harmony Guides, Knit Edgings & Trims (copyright 2009). (And, you wanna bet one could find this in a Barbara Walker?) So I shouldn’t copy the pages to distribute to my library’s knitting group?

        I think what you quoted, “I don’t think anyone actually invents anything at this point since knitting has been around for so long.”, says it all. Think about cabling. There are many, many variations on the theme of crossing stitches (see Starmore, Newton, Chin,…..). Because I put a column of variation A next to a column of variation B and no one can show that anyone did that before (hard to imagine, not even thinking of the logical impossibility of proving a negative), that shouldn’t be copywritable. Think of stranding. Even Alice’s color change sequences (the “pictures” she’s “drawing”) are not typically original; her creativity is largely in her choice of colors and when she changes them. What if I use everything from one of hers except I use a different set of colors/yarns?

        Maybe some of Kaffe’s and the other Brit’s intaria, but what if I take one of his virgins and incorporate her with X’s and O’s in a stranded work in wool? (Yuck.)

        For me, it’s back to your quote, paraphrased, “there’s nothing new in knitting under the son.”

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