Re: Typefaces

On Wed, 20 Mar 1996 SJamar[_at_]aol.com wrote:
>
> How do you draw the line between an ordinary font or typeface and a
> copyrightable one?

The same as with any other purported work of authorship: does the work embody sufficient original expression to qualify as an original work of authorship?

> Why should the law even get into this? Where is
> the harm in allowing typefaces to be freely copied?

I really don't know how to respond to this, except that one could make the same argument over letters, photographs, books, maps, encyclopedias, motion pictures, choreographic notations, or any other work: the harm is that the lack of protection discourages competent designers to enter or remain in the field of typeface design and to produce more new and original designs.  

> One must carefully draw a distintinction, I think, between the
> typeface (graphic representation) itself, and the generative program.

We did, in the message that started this thread. It's archived at gopher://gopher.cni.org:70/0R434440-439194-/cniftp/forums/cni-copyright/log9603 so I won't repeat it here.

> The program would be copyrightable assuming adequate originality - e.g.,
> postscript fonts. But I can and should be able to write a bitmap font
> or a quickdraw font or any other system of drawing fonts, including a
> postscript-like method (postscript method being an idea or method and
> hence not protectible under copyright), so long as the program itself
> has not copied protectible expression.

Except that, let's face it, the most expressive thing about a program that produces typeface output is the typeface output. The current practice of protecting a program that produces typeface output while allowing the typeface itself to be freely copied turns the purpose of copyright on its head. A font program in object code format (in which format its expression as a literary work is incapable of being perceived), whose sole value is the function of reproducing the shapes of letters, is protected. However, the expressive aspect of the font, the design of the typeface encoded into it, is not protected. This defies logic.

> But even so, why give protection to the lettering itself? Why not let
> everyone else combine that lettering style in new graphic works?

Because the lack of such protection discourages the best designers of lettering styles (e.g., Hermann Zapf) from continuing to design attractive typefaces, and instead to seek other lines of work; that is, the typical justification for copyright, as found in Article I, Section 8, clause 8.

> Finally, granting copyright would be an unenforceable nightmare. When
> is a typeface like another typeface? Geneva, Helvetica, Arial, and
> other sans-serif typefaces all seem quite similar to each other. New
> York, New Century Schoolbook, Times, and AGaramond are very like each
> other. Gothic and London are like each other. Marquis and others are
> common iconographic symbols in some settings.

First, even if there would be difficulties in enforcement, that's not a sufficient reason to enact a categorical rule that says that the author always loses. There are many cases that are difficult to decide, but it has never been U.S. jurisprudence to simply avoid difficult questions. As Llewellyn noted, "The court must decide the dispute that is before it. It cannot refuse because the job is hard, or dubious or dangerous."

Second, I disagree with the premise that in all cases, similarities in typeface are impossible to determine. Expert testimony is used in music copyright cases, for example, to assist in the determination of whether the defendant's work was likely to have been copied from the plaintiff's work. In addition, differentiation between typefaces is already made in other types of cases, such as trademark. Finally on this point, and most importantly, I think the claim that it is impossible to differentiate between typefaces ignores the simple reality of the typeface and font market. If the general public really can't tell typefaces apart, why do they ever buy new ones? If typefaces all look the same to the average consumer, then the average consumer would be quite happy with the fonts that come shipped with his or her consumer. And yet, somehow, the consumer can tell them apart, and is willing to part with money to purchase designs that are different from the ones that the consumer already has. What reason is there not to expect a consumer to be able to make, as a juror, the very same distinctions that he or she apparently makes quite capably when shopping?

Third, not all copyright cases require a showing of similarity to determine whether the work was copied. The copying may be admitted, for example, or established with eyewitness testimony (e.g., of a disgruntled former employee), and the only dispute may be over whether the copying was authorized and non-infringing or unauthorized and infringing. The fact that there may be evidentiary difficulties in some cases does not justify denying copyright to an entire class of works, thereby eliminating recovery even in the cases where no such evidentiary difficulties exist.

Fourth, denying copyright does not eliminate the evidentiary difficulty -- it just shifts it. In the absence of copyright protection, typeface producers have relied on licensing between the font houses. When a dispute arises under these contracts, the very same issues of similarity arise as would arise under a copyright infringement suit. An example is the dispute about three years ago between the International Typeface Corporation and Monotype. Monotype had licensed typeface designs to ITC on the condition that ITC not market them under any other name. When ITC began marketing their own typeface under its own names, Monotype, believing the ITC typefaces to have been copied from the licensed typefaces, sued for breach of contract. The jury was called upon in that case to determine whether ITC had copied or independently produced its own design. The jury concluded that ITC had independently developed its own design, and had not copied from Monotype. This is exactly the type of fact-finding that a jury would be called upon to make if typeface were protected by copyright.

I should also note that the use of contracts is a very incomplete solution and does not obviate the need for copyright protection. The licensing is useful between the big houses, which contract to get early starts on reproducing each others typefaces, but does nothing to protect against the knock-off artists.

Finally, I note that typeface designs are protected by copyright in a number of non-U.S. jurisdictions, and a very few are protected by design patent in the United States. I am unaware of anything in any of these non-U.S. jurisdictions or in U.S. design patent jurisprudence that suggests the predicted enforceability nightmare.

As to the specific typefaces cited, it may very well be that a particular typeface is little more than a copy of an existing face, with no originality and therefore not subject to copyright. However, that has no bearing on the wisdom of a categorical exclusion of all typefaces from copyright.

By the way, Geneva was copied from Helvetica, which accounts for the similarity between them. It also accounts for the subtle similarity in name -- it will be recalled that the official name of Switzerland is "Confoederatio Helvetica" (hence its confusing, to the average U.S. Internet user, domain name of ".ch"). The Geneva typeface is so named because Geneva is the name of a major city in Confoederatio Helvetica. I believe Ariel is also a Helvetica copy. The three faces are named differently because the names are protected by trademarks, not because they're actually distinct faces. Most importantly, however, the observation of the similarities among them doesn't support the claim of evidentiary difficulties; in fact, it's a perfect example of the opposite: that the comparison is not particularly challenging, and that it's simply not that tough to detect a copied typeface.  

--
Terrence J. Carroll 
Attorney at Law                                      ph: 415/843-5090
Cooley Godward Castro Huddleson & Tatum             fax: 415/843-0663
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