Are Tartans Protcected in Law?

[MACKAY]

I was recently doing a bit of researching and came across this statement from a publication entitled "Clans and Tartans, by Charles MacKinnon of Dunakin 1962" ....

"Nowadays tartans are being registered by the Lord Lyon King of Arms, and when so registered (on the application of the chef du nom), they become protected in law in a similar way to arms themselves. It is an offence to sell and incorrect version of a registered tartan as “X” tartan. (It is not, of course, an offence to sell it simply as an undesignated tartan). A case in point is the bogus hunting MacKinnon tartan, which is now flooding the market in the form of tartan skirts, tartan jeans and even tartan bonnets. It is, in the writer’s opinion, an improvement on the original, but it is not hunting MacKinnon (which is a registered tartan), and it is therefore illegal to offer it in Scotland under than name."

Does anyone have any diffinitive information on this? Is this, or was this accurate in 1962?

Brian Mackay

[Jimmy Carbomb]

I actually read an article on the "influx" during my education last year. It was more of a study on how mills will slightly change a registered tartan in order to produce it without copyright fees. The lesson was more a study in respect and heritage versus making money. You would not believe how many tartans are being sold and worn right now that are barely off of the specs. The average eye would not notice the difference, whereas the trained eye can even be fooled by shades and width variances in the patterns.

As for the actual laws that may be out there... I'm no lawyer. There may be information through Matt Newsome that would enlighten this part further. I have trouble enough in keeping the laws of the road in-check.

[clancelt]

Not sure really, I did run across this:

As far as we know, we are the only band authorized to use this tartan.

The official name of this tartan is "Pride of Scotland", but it's nickname is "BraveHeart Tartan" and was introduced in 1997, and then registered and restricted in 2000.

The tartan is in fact restricted and can only be worn with permission from the family in Scotland that holds the rights or copyright to the tartan.

Currently, and as far as we know, we are the only band in the United States that has permission to wear this tartan - 13 oz. It is quite distinctive, making us easy to identify where we compete.

Lochcarron Mills of Galashiels, Scotland has permission to weave this tartan. They are currently allowed to weave 10 oz. and 13 oz. material. All kilts must be sewn by Lochcarron Mills Kilt Makers.



Which leads me to think there is some truth to it. I always thought wearing something like a Royal Stuart would just be in bad taste if you were not a Royal, yet here in the good ole US of A I have seen bath robes made in this tartan.

I imagine a family who owns a registered tartan would be quite upset if they found that a tartan that represents their family is being used for a throw cover by someone who just thought it looked nice with their drapes.

YMMV

[Jimmy Carbomb]

Which leads me to think there is some truth to it. I always thought wearing something like a Royal Stuart would just be in bad taste if you were not a Royal, yet here in the good ole US of A I have seen bath robes made in this tartan.

I could not agree MORE with the "bad taste" comment. That's the whole lesson that we've been preaching for some time around here... "Know Your Tartan". with kilts (especially) there should be a little respect for what's worn. After all, we're a sort of "protector" of the heritage. It's a responsibility that should be more of an honor than a burden to us.

The "Pride of Scotland" is available through other sources now... as are the National Tartan of Scotland and the "Flower of Scotland". Is the "Pride of Scotland" that's NOT milled by Lochcarron Mills real? Your guess is as good as mine.

[M. A. C. Newsome]

Tartan copyrights area tricky business. Most of your traditional tartans have no copyright. They have been produced and used for numerous generations. Whether or not Lord Lyon has recorded them is a moot point. Lord Lyon has never claimed to have any jurisdiction over tartan. If a clan cheif asked him to, he would record the sett that the cheif claimed as his tartan as a matter of record. But it had no legal status. When the Scottish Tartans Society was formed in 1963, Lord Lyon stopped recording tartans, and that task was undertaken by the STS. This group also claimed no jurisdiction over tartan, but simply recorded them for academic purposes. What makes a tartan "official" or not was the recognition of the clan cheif.

(The STS has apparantly folded up, by the way, but the same work is continued today by the Scottish Tartans Authority, formed in 1996, I beleive).

In any case, regarding the issue of the "Hunting MacKinnon" tartan mentioned in the article, that may well be so (I haven't looked into that particular tartan, so I'm just assuming what the article says is correct). Anyone can pretty much design any tartan he or she wants and call it anything under the sun. That doesn't make it official, but neither does is violate any copyright. I designed a tartan for a friend of mine who is a MacGregor. It's the MacGregor sett with the black and red reversed. We call it "Black MacGregor" and even had it recorded under that name by the STA. It's a personal fancy tartan. We make no claims that it is a recognized MacGregor sett. The Campbell of Argyll tartan is also a fashion tartan. It's never been recognized by the clan Campbell. There are a large number of tartans that have just been designed, given names, and never recieved any official approval. It doesn't make them illegal.

The only restriction I see on this is if you decided to give your tartan a name that is itself copyrighted or trademarked. For instance, if I were to design a purple and gold "LA Lakers" tartan, and market it as such, I imagine I'd get a nice letter from the Lakers' lawyers asking me to cease and desist.

Now, many modernly designed tartans *are* in fact copyrighted. These would be tartans designed by woolen mills, who want to ensure that they are the sole provider of the tartan -- they designed them to make money, and want to protect their investments. House of Edgar, for instance, has the rights to produce all of the Irish county tartans, so you can only get goods in those tartans from them. But this is because they designed the tartans. These kinds of restrictions don't apply on the more traditional setts.

Aye,
Matt

[jkdesq]

Her Majesty the Queen has invited all people who do not have a tartan of their own to wear the Royal Stewart. Windsors being bad winners by letting the rabble wear the competing houses tartan?

As to a throw that matches the drapes: Balmoral Castle is a kleidoscope of royal stewart (in normal and in dress) as carpet, wallpaper and apolstery.

I would agree with you, that someone who has a restricted tartan might be bothered. Royal Stewart is definitely not restricted or treated by anyone with any reverence. So, go ahead, make a coat for your highland terrier out of it.

I have a question. It is apparent that there might be "restricted tartans" protected by Scottish intellectual property laws. Do these laws have any effect outside the United Kingdom? On the one hand, copyrights are somehow internationally protected; so I could see the answer being "yes". On the other hand, I don't think a coat of arms granted by Lord Lyon enjoys any protection in the United States; so I could see the answer being "no". Anyone have any ideas?

[Jimmy Carbomb]

Now, many modernly designed tartans *are* in fact copyrighted. These would be tartans designed by woolen mills, who want to ensure that they are the sole provider of the tartan -- they designed them to make money, and want to protect their investments. House of Edgar, for instance, has the rights to produce all of the Irish county tartans, so you can only get goods in those tartans from them. But this is because they designed the tartans. These kinds of restrictions don't apply on the more traditional setts.

Aye,
Matt

Hey Matt. Are the "Burberry" tartans actually copyrighted or protected? I would have thought that they would be a "proprietary" pattern that they would use for their unique products. Unfortunately, I've seen MANY knock-offs out there. Perhaps this is a REAL good example of how mills can "tweak" the tartan to produce it without any infringements?

[jkdesq]

Matt,

You and I, I guess, were typing at the same time. Thanks for the info.

I guess a case in point out be Burrberries. They are an international business with a tartan design as their major trade mark. Anyone have an ideas what type of intellectual property protection they have?

When I was in Hong Kong in 1996, I saw (and almost bought because I thought it was so amusing) a golf shirt in the Burrberries plaid with a Ralph Lauren "Polo" horse and rider on the chest. Who should have sued whom?

[millar]

International copyright is a tricky area. There is the Berne Convention which set up the guidelines for international copyright protection and enforcement but not all countries are signatories to it. So if the copyright infringer is located in a country that has not signed onto Berne there is little enforcemetn that can be done. Kind of like that kid that let out the computer virus in the Phillipines who was not prosecuted because there was no law against it there.

Looking at the US Copyright office webpage they say that just about anything is copyrightable and I guess the creation of a tartan would fit into this category, like a work of art. There is also trademark which is something like the nike symbol and I believe the Burberries tartan would fit into this category, something that is intimately connected to the company where knocking it off would cause a deception, and this is more of a consumer protection/brand protection issue.

[clancelt]

I would agree with you, that someone who has a restricted tartan might be bothered. Royal Stewart is definitely not restricted or treated by anyone with any reverence. So, go ahead, make a coat for your highland terrier out of it.

I don't disagree, I used that as an example. Nothing says I can't use it(as I understand) but I wouldn't because I feel it would not be right. I have no reason to have or use it. I was just trying to point out it is more a matter of taste/respect rather than law.

Will you get locked up in the US for making a pair of jeans or a vest out of the American flag? No probably not, but I know some people who would think that was just in bad taste. Both the flag and tartan are symbols to some who may be offended by things they feel are disrespectful even if not illegal.

Just my point of view.