[October 2000] Typeright Typefaces copyright: the American issue

"to promote typefaces as creative works and to advocate their legal protection as intellectual property" is the mission of TypeRight, an American organisation which defends the right for American type designer to enjoy legal protection for their typefaces.

An unquestionable fact remains: a typeface, its legibility and design, is the result of a creative process that can take months.

There are legal foundations to why there should be font copyright. In fact, cases from other fields, and the United States’ obligations under international conventions, demand that copyright registration be allowed for type fonts. Most courts in the U.S. will not find any difficulty with these arguments.

The US Copyright Office still officially refuses to accord protection for typeface designs. This is due to a misunderstanding of the field, which has resulted in the United States being the only country in the western world not to recognize the intellectual property in typeface designs. 

Congress and the Copyright Office

Copyright once did protect typefaces (see 1911 Act) but the 1976 Copyright Revision Act changed that. The leading judgment is Eltra Corp. v. Ringer, dealt with below. 

The Copyright Office has visited the question time and time again. Fonts were never said to be in the public domain, but they have determined that fonts are not subject to protection as artistic works under the 1976 act. 

Unfortunately, their determinations were based partly on antitrust implications, and in ignorance of the greater issue of intellectual property law, which does not have the force it does in the 1990s. It was believed that by protecting fonts, competition would be driven down. However, in countries where fonts are protected by copyright, the contrary is true -- new designs are being created continuously, without threat of intellectual property theft. 

The lack of protection for fonts is anomalous -- a photograph or a drawing have the same creative effort as a typeface, and are accorded protection under the act. 

The common law

When Eltra was judged, fonts were not as prevalent as they are nowadays. There were also fewer decorative styles, made possible through today’s font creation programs. Lawyers and judges in that case felt fonts were utilitarian. Their reasons were based on old notions, at a time when intellectual property was not the big issue it is today. 

The practice of the Courts of Appeal and the Supreme Court today is to use what is known as the "filter" test (Altai). They ask:

• (a) what parts of the work at issue are dictated by efficiency, function or nature?; 
• (b) what parts are left? The parts that are left fall under the description of artistic expression.

8. In the Lotus v. Borland case (1-2-3 and QuattroPro), the court demonstrated that it was willing to take the nature of the product into account. For (a), they said a menu hierarchy in Windows was an example (’File, Edit, etc.’) or the play and record buttons on a VCR. 

But there were aspects of QuattroPro that were individual, and could be thought of as artistic, said the court. Other authorities have come to the same conclusion. 
Logically, if a computer program can qualify as being an artistic work, a strong shadow is cast over Congressional determinations and earlier precedent like Eltra. 

For a typeface design, the order of the work (e.g. ASCII 65 = A) and the fact that letters have a function to communicate, thereby needing some resemblance to what we consider as the alphabet, would fall under (a). 
But any font user will agree that aside from that, typeface designs have plenty of merit outside these two aspects, which fall under (b). 

Fonts, after all, are differentiated on their artistic merit. They are sold on this merit. This is the commercial reality. It would be senseless to think that it would not be subject to protection as an IP asset if the courts were to recognize this reality. 

Berne Convention

It is evident that the United States copyright position is anomalous with the position in other parts of the developed world. The United States has held herself out as a leader in intellectual property when it comes to software, yet neglects typeface design. However, similar creative issues apply. 

The United States’ obligations under the Berne Convention, now that she is a signatory, is to respect the copyright on fonts, if such copyright exists in the countries they were designed in. Fonts designed outside the United States become subject to protection as artistic works. There is little reason for domestically designed fonts to receive a different treatment (nor should they -- GATT Articles 1 and 3). 

Moral rights

Additionally, European and Commonwealth copyright laws increasingly recognize the moral right in designs. European jurisdictions rank the moral right ahead of economic rights. This means that artwork -- including typefaces in Europe -- should be dealt with fairly and in a bona fide manner. 

One recent Supreme Court case (Monotype Corp. v. International Typeface Corp.) discusses that only the economic right could be protected. This case was fought in contract and shows the difficulties of using non-intellectual property analyses in what should have been an IP case. 

Summary

It is evident that a change in the law is needed, whether this be through Copyright Office guidelines (at the least) or an express amendment in the Copyright Revision Act of 1976. In US jurisprudence, it is very likely that Eltra v. Ringer will be distinguished, lessening its persuasiveness, but this is hardly enough to bring the United States into line with the rest of the world.

Website: Typeright.org (article published initially on the Typeright site).