Note: when this was originally posted years ago, the blogger’s userid was included; I’ve deleted that identifying information here.
From: Alexander Muir
To: [blogger]
Dear [name redacted],
Thank-you very much for your letter and for removing the Alice Starmore copyright material from your site.
To your question. It depends very much on the circumstances of publication. Let us say you are in a photo in a family website, or a university magazine, and you are wearing an AS sweater in that photo, then in my opinion the publisher would not be infringing copyright. The same would apply to say, a designer suit, or whatever. In these cases, it is reasonably plain that no “derivative use” is being made of the design, and there is no ulterior motive in publishing
the photo.
Much depends on the context of publication however. If your family picture were placed on a specific
knitting site, or say on the cover of a knitting magazine, then derivative use of the design could be strongly argued, and action taken.
The situation changes further if the designer’s name is used alongside the photo. There are circumstances
in which the designer could claim that his/her good name is being used to some purpose without his/her
approval.
The situation changes even further still if the designer’s name is a registered trademark, and it is used alongside the photo. For example, “Alice Starmore” is a registered trademark in several countries, in the class “Yarns & Threads For Textile Use”. In the US, “Alice Starmore” is registered at the United States Patent and Trademark Office, No 2,344,881. This means that Ms Starmore owns the right of sole and exclusive use of the name “Alice Starmore” to conduct business in that class. Since the mark is registered, then her rights are protected under Federal law (unregistered marks fall under State legislature) and she therefore has considerable means of redress under the said courts if her mark is infringed in any way. The most common form of infringement are words to the effect, “here is an Alice Starmore design knitted in yarn from…” and there follows the name of another yarn company. In this case,
not just the design, but the registered trademark is being used to promote a rival manufacturer of yarns and
threads for textile use. This is most certainly actionable.
The foregoing explanation comes with the caveat that I am both Scottish and located in Scotland, and I do not
have knowledge or experience of every shade and nuance of US copyright and trademark law. I am employed on an
ad hoc basis by Ms Starmore to act as her informal contact in the first instance only. If matters proceed beyond the informal then they are passed on to her legal representative in the country concerned.
Once again, I would like to thank you for your co-operation and for taking the time and trouble to contact me.
Yours sincerely,
Alexander Muir