Re: Typefaces

Terry Carroll writes:
>
> [T]he 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.

     This analysis proves far too much. It is essentially that of Judge Keeton in the Lotus case and loses track of why technological works in the form of computer programs were brought under copyright in the first place. We protect programs under copyright NOT because of the output that they generate, which may or may not independently qualify as protected works. We protect programs because they represent the product of intellectual creativity and, if unprotected, would (presumably) be insufficiently produced because they are too easy to pirate. (That, at any rate, was CONTU's reasoning.) Lotus also exercised much creativity in designing its user interface, just as the designer of an airliner's control panel exercises creativity. The goal of this creativity, however, is to make operation of the device in question (i.e., Lotus 1-2-3 or the airliner) easier to learn, more efficient, safer, etc. This is patent subject matter, not copyright. If not patented, technology should be allowed to improve through incremental advance. Consequently, creativity (or lack thereof) in the program generating the output should have nothing to do with whether the output is copyright protected.

     That being said, I agree with nearly all of what Terry says about the copyright protectibility of new and creative fonts. They are not functional in the same sense that the Lotus 1-2-3 user interface is, and while many new fonts may be such trivial variations on public domain fonts that they do not show sufficient creativity, I do not understand the argument against their protectibility under copyright in general.

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu Received on Mon Apr 01 1996 - 19:09:12 GMT