Re: Typographic copyright

On Wed, 27 Mar 1996, Prof. Howard R. Lurie wrote:
>
> H.R. 94-1476, HOUSE REPORT ON THE COPYRIGHT ACT OF 1976 contained the
> following (which seems relevant to the discussion):
>
> "The Committee has considered, but chosen to defer, the possibility
> of protecting the design of typefaces. A 'typeface' can be defined as a
> set of letters, numbers, or other symbolic characters, whose forms are
> related by repeating design elements consistently applied in a notational
> system and are intended to be embodied in articles whose intrinsic
> utilitarian function is for use in composing text or other congnizable
> combinations of characters. The Committee does not regard the design of
> typeface, as thus defined, to be a copyrightable 'pictorial, graphic, or
> sculptural work' within the meaning of this bill and the application of
> the dividing line in section 101."

There are two problems with accepting this paragraph as authoritative.

First, it appears only in H.R. 94-1476. Nothing remotely like this paragraph can be found in the equivalent Senate report, S. Rep. no 94-473. This is despite the fact that both reports are nearly identical for the bulk of the reports. The statement, therefore can certainly not be taken as the views of both houses, but rather only of the House of Representatives. Technically, of course, it doesn't even necessarily reflect the view of the entire House, but only of the committee that authored the report, but that's true of any such report, so I don't consider that point to be any fairer game than it is for the legislative history of most statutes. And, of course, there is nothing in the statute that relates to this particular issue.

The second problem is that both the House and the Senate in their respective reports make it quite clear that they intended to leave the standard for copyrightability unchanged from that of the 1909 Act. The following clause, identically worded, appears in both reports, in the House report at page 51, and in the Senate report at page 50:

     The phrase "original works of authorship," which is purposely
     left undefined, is intended to incorporate without change the
     standard of originality established by the courts under the
     present [i.e., 1909] copyright statute.  This standard does not
     include requirements of novelty, ingenuity, or esthetic merit,
     and there is no intention to enlarge the scope of copyright
     protection to require them. 

Given that the House intended to implement, unchanged, the 1909 standard for copyrightability, its comments on the types of works that meet that standard can only be read as its interpretation of the 1909 Act. It's entitled to some weight as a congressional declaration, but ultimately, the 94th Congress's interpretation of a statute enacted by the 60th Congress 67 years earlier is hardly authoritative. I should also note that I could find nothing in the legislative history of the 1909 Act to suggest that the 60th Congress intended to categorically exclude typeface from its rather sweeping phrase "all the writings of an author" in section 4 of the 1909 Act, either.

I am pleased to note that Nimmer, in section 2.15 of his copyright opus, supports both of these arguments. Nimmer, in fact, goes too far. Nimmer argues that the House Report is ambiguous on the copyrightability of typefaces, because the Report characterizes as "unanswered" the question "Should typeface designs be given the protection of the title?" Unfortunately for my view, Nimmer's argument can only be supported by a glaring mischaracterization of that quotation. When read in context, it's clear that, by the phrase "this title," the report is not referring to Title 17, U.S. Code. Instead, it is referring to Title II of S.22, the Senate version of the the bill that ultimately became the 1976 Copyright Act. Title II was the Senate's proposed Design Protection Act of 1975. If it had been enacted, it would have added new provisions to Title 17 for the protection of original (but not novel and non-obvious) ornamental designs for useful articles. So the House Report is not saying that the question of whether typefaces should be subject to copyright is unanswered; instead, the House Report is saying that the proposed Design Protection Act did not make clear whether typefaces would have been covered by that act.

(Of course, one reason why the Senate may not have made that clear is that perhaps it, unlike the House committee, may not have intended for the categorical exclusion of typeface from copyright protection. See my first argument, above.)

--
Terrence J. Carroll 
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