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RESTRICTED TARTANS AND COPYRIGHT
©2007 Matthew A. C.
Newsome, GTS, FSA Scot.
published in the Scottish Banner, April
2007
Recently tartan has been in the mainstream news here in the United States,
after major clothing company L. L. Bean has been sued by Jan and David
Holmes. It seems that L. L. Bean used the Maine tartan in their “Americana”
series of men’s shirts without permission of the Holmeses, who hold the
copyright to the design. I don’t know any more details about the case than
have been reported in the media, but I suspect L. L. Bean probably didn’t
realize that permission would be required to use what they believed to be the
state tartan where their company is based.
Ironically enough, the Maine tartan which they used is not even the official
state tartan for Maine. It seems that there have been enough issues over the
copyright for the original Maine tartan (designed in 1964) that another Maine
tartan was more recently designed by the St. Andrews Society of Maine. This
latter design is called the “Maine Dirigo” tartan (from the state motto,
dirigo, meaning “I lead”). It was discovered that the first Maine tartan
was never officially adopted by the state, and so legislation was submitted in
2001 to have the “Dirigo” tartan officially recognized. As it turns out, that
resolution did not pass, so now there are two Maine tartans, neither of which
are “official” (according to the state itself).
Since
this news story first appeared in late February, I have received more than a
few questions regarding tartan and copyright restrictions. Before I go any
further, I must point out first that I am not a copyright lawyer; and second,
though I am somewhat familiar with the way things work in the USA, your own
country may have different intellectual property laws and you need to do your
research if you have serious questions on this issue.
People
have asked me if it is even possible to have a tartan design copyrighted.
Yes, it is. People ask this question because when one thinks of tartan
usually it is a traditional tartan design such as MacGregor or MacDonald or
Campbell. These tartans may be 200 years old or more and the original
designer is lost to history. Woolen mills across the globe produce these
traditional tartans, because the designs are part of tradition, considered in
the public domain.
However, it is important to remember that new tartans are still being
designed. And like any other creative work, the person who creates the design
has certain rights over his or her intellectual property. Just like a poem, a
song, or a painting, the tartan design is theirs to use as they see fit. You
would not want someone else recording your song and claiming it as their own,
and likewise you would not want someone else producing a tartan that you
designed. This is why many countries have intellectual property laws to
protect individuals from this sort of thing.
Who
would want to copyright a tartan? Those who make their living producing
tartan cloth certainly have a stake in protecting their unique proprietary
designs. Major tartan producers such as the House of Edgar, or Lochcarron,
have tartans that were designed by the company and so they have a vested
interest in keeping those designs from being copied by their competitors. The
very popular Irish County tartans, for instance, are proprietary tartans of
the House of Edgar. This company designed and first produced these tartans in
1996. They have proven to be quite a success, and because they are only
produced by the House of Edgar, that company has reaped the benefits of their
excellent design and promotional work.
What
about an individual who designs a new tartan because he or she wants to make a
contribution to the culture or honor the heritage of a family or region?
Let’s say Mr. MacAncheese designs a new tartan for the MacAncheese name. He
has no interest in making money off of his design. He just wants as many
MacAncheeses as are interested to have and wear the tartan. It makes sense
that he may choose to relinquish any kind of copyright protection so that any
woolen mill who wanted to could produce the design upon request. This would
make the tartan more readily available to the public.
Really
what it all boils down to is control. Do you, as the copyright holder of a
tartan, want to be able to control who can produce the cloth? Different
people will naturally answer that question in different ways, and the answer
may in fact change over time. In 1992 Derek Young designed a new tartan for
the Young family by combining elements from the Clan Douglas tartan (whom the
family is associated with) and the historic Christina Young arisaid tartan
from 1726. I recall, approximately ten years ago, when this tartan could only
be purchased directly from the Clan Young Society. However, these days it is
produced by more than one major tartan supplier in a few color variations and
you can buy it from just about any tartan shop. I’m not privy to the details,
but it would seem that the copyright holder of the tartan decided to go from a
more restricted to a less restricted policy.
Which
brings me to my last point. When the person (or company) who holds the
copyright to a tartan wants it restricted, this restriction typically has to
do with production of the tartan, not with who can wear it. I sometimes get
questions asking who has the “right” to wear a tartan that has been restricted
in this manner. The answer is anyone at all! One does not have to prove that
one came from County Antrim to wear the County Antrim tartan, nor does one
need the House of Edgar’s permission to wear it, though they may hold the
copyright.
So long
as I buy the tartan from House of Edgar, I can make a kilt from it, a skirt, a
shawl, draperies for my home, or upholster the cab of my pick-up truck. I can
also retail all the Irish County products I like in my tartan clothing shop –
again, so long as I purchase those goods from the House of Edgar. The same
scenario is true of any proprietary tartan and the copyright holding company.
Production of the tartan is restricted – use of the tartan by you, the
consumer, is not.
This
means that you can wear your tartan kilt, neck tie, shawl or scarf all you
like. Wear it with pride and don’t loose one bit of sleep worrying over who
holds the copyright or whether it is “restricted.” If the wearing of a tartan
were truly restricted, you’d never find it for sale in the shops to begin
with. Such issues, though interesting, rarely have any relevance to the
actual tartan wearer.
