reid@decwrl.UUCP (07/10/86)
Various people who didn't in fact know anything about typefaces and
copyrights have made statements in this forum (net.sources.d) recently about
typeface copyright. To set the record straight, here is an essay on the topic
by Charles A. Bigelow, a partner in the San Francisco typeface design firm of
Bigelow and Holmes. Bigelow and Holmes are the designers of the "Lucida"
family of typefaces, and are both internationally recognized lecturers on the
subject of type design and typeface copyright. Bigelow is also a professor of
digital typography and computer science at Stanford.
This essay is not copyrighted.
Date: 7 Jul 86 2024 PDT
From: Chuck Bigelow
To: reid@decwrl
Notes on Typeface protection.
PREAMBLE
The first question of typeface protection is: "Is there anything there
worth protecting?" To that the answer must certainly be: "Yes, typeface
designs are a form of artistic and intellectual property." To understand
this better, it is helpful to look at who designs type, and what the task
requires.
WHO MAKES TYPE DESIGNS?
Like other artistic forms, type is created by skilled artisans. They may
be called type designers, lettering artists, punch-cutters, calligraphers,
or related terms, depending on the milieu in which the designer works and
the technology used for making the designs or for producing the type.
("Type designer" and "lettering artist" are self-explanatory terms.
"Punch-cutter" refers to the traditional craft of cutting the master image
of a typographic letter at the actual size on a blank of steel, which is
then used to make the matrix from which metal type is cast. It is an
obsolete though not quite extinct craft. Seeking a link to the tradition,
modern makers of digital type sometimes use the anachronistic term
"digital punch-cutter". "Calligrapher" means literally "one who makes
beautiful marks", and the particular marks are usually hand-written
letters, though calligraphers may design type, and type designers may do
calligraphy.)
It usually takes about seven years of study and practice to become a
competent type designer. This seems to be true whether one has a Phd. in
computer science, a high-school diploma, or no academic degree. The skill
is acquired through study of the visual forms and practice in making them.
As with geometry, there is no royal road.
The designing of a typeface may require several months to more than a
year. A family of typefaces of four different styles, say roman, italic,
bold roman, and bold italic, is a major investment of time and effort.
Most type designers work as individuals. A few work in partnership (Times
Roman(R), Helvetica(R), and Lucida(R) were all, in different ways, the
result of design collaboration.) In Japan, the large character sets
required for a typeface containing Kanji, Katakana, and Hiragana,
encourage design by a team of several people.
Although comparisons with other media can only be approximate, a typeface
family is an accomplishment on the order of a novel, a feature film
screenplay, a computer operating system, a major musical composition, a
monumental sculpture, or other artistic or technical endeavors that
consume a year or more of intensive creative effort. These other creative
activities can be protected by copyright or other forms of intellectual
property protection. It is reasonable to protect typefaces in the same
way.
THE PROBLEM OF PLAGIARISM
A lack of protection leads to plagiarism, piracy, and related deplorable
activities. They are deplorable because they do harm to a broad range of
people beyond the original designers of the type. First, most type
plagiarisms are badly done. The plagiarists do not understand the nature
of the designs they are imitating, are unwiling to spend the necessary
time and effort to do good work, and consequently botch the job. They then
try to fob off their junk on unsuspecting users (authors, editors, and
readers). Without copyright, the original designer cannot require the
reproducer of a type to do a good job of reproduction. Hence, type quality
is degraded by unauthorized copying.
Secondly, without protection, designs may be freely imitated, and the
plagiarist robs the original designer of financial compensation for the
work. This discourages creative designers from entering and working in the
field. Hence, as the needs of typography change (for example, documents on
CRT screens and laser printers) new kinds of typographic functions arise
which require inventive, creative design. Creative responses to such
changes cannot flourish without some encouragement for the creators. In a
capitalist society, the common method is property rights. In a socialist
(or, in the past, royalist) society, the state itself might employ
artists. France, as a monarchy and as a republic has had state sponsorship
of typeface design for almost 300 years.
In an effort to justify plagiarism, it is sometimes claimed that the type
artists do not usually receive a fair share of royalties anyway, since
they have usually licensed their designs to some large corporation that
exploits them. While it is true that type designers, like many artists,
are often exploited by their "publishers", plagiarism only worsens the
situation. The designer is deprived of a rightful share of the profit
from the design, since the manufacturer-publisher's revenue is reduced,
and plagiarism gives the manufacturer-publisher another excuse to reduce
the basic royalty or other fee paid for typeface designs, since the market
value of the design is less than its intrinsic value. The theft of type
designs ultimately hurts individual artists more than it hurts impersonal
corporations.
KINDS OF PROTECTION FOR TYPE
There are five different forms of protection for typefaces:
1. Trademark; 2. Copyright; 3. Patent; 4. Trade Secret; 5. Ethics
TRADEMARK. A trademark protects the NAME of a typeface. In the U.S., most
trademarks are registered with the U.S. Patent and Trademark Office. The
R in a circle (R) after a trademark or tradename indicates U.S.
registration. The similarly placed TM indicates that a trademark is
claimed, even if not yet officially registered. However, a trademark may
be achieved through use and practice, even without registration. Owners of
trademarks maintain ownership by use of the trademark and by efforts to
prevent infringement or unauthorized use of the trademark by others.
As a few examples of registered typeface trademarks, there are Times Roman
(U.S. registration 417,439, October 30, 1945 to Eltra Corporation, now
part of Allied); Helvetica (U.S. Registration 825,989, March 21, 1967 to
Eltra-Allied), and Lucida (U.S. reg. 1,314,574 to Bigelow & Holmes). Most
countries offer trademark registration and protection, and it is common
for a typeface name to be registered in many countries. In a few cases the
registrant may be different tha the originator. For example, The Times New
Roman (Times Roman) was originally produced by the English Monotype
Corporation. In England and Europe, most typographers consider the design
to belong to Monotype (if it belongs to anyone), but the design was
registered by Linotype (Eltra-Allied) in the U.S., as noted above.
Trademark protection does not protect the design, only the name.
Therefore, a plagiarism of a design is usually christened with a pseudonym
which in some way resembles or suggests the original trademark, without
actually infringing on it. Resemblance without infringement may be a thin
line.
Some pseudonyms for Times Roman are: "English Times", "London", Press
Roman, "Tms Rmn". Some for Helvetica are "Helios", "Geneva", "Megaron",
Triumvirate. There are also classificational schemes with generic
categories indexed by typo-decimal numbers. These have also been used as
pseudonyms, e.g. "Swiss 721" for Helvetica, and "Dutch 801" for Times
Roman.
A trademark usually consists of both a proprietary and a generic part.
For example, in the name "Lucida Bold Italic", "Lucida" is the proprietary
trademark part and "Bold Italic" are the generic parts. The generic word
"type" is usually understood to be a part of the name, e.g. "Lucida Bold
Italic type". Sometimes a firm will append its name or a trademarked
abbreviation of it to the typeface name, to achieve a greater degree of
proprietary content, e.g. "B&H Lucida Bold Italic".
A related matter is the use of the name of a type's designer. A firm that
ethically licenses a typeface will often cite the name of the designer --
e.g. Stanley Morison (with Victor Lardent) for Times Roman, Max Miedinger
(with Edouard Hoffmann) for Helvetica, Charles Bigelow and Kris Holmes for
Lucida. Although a person's name is not usually a registered trademark,
there are common law restrictions on its use. The marketing of
plagiarized type designs generally omits the names of the designers.
Although Trademark is an incomplete kind of protection, it is used
effectively (within its limitations) to prevent the theft of type names.
Certain traditional typeface names like Garamond, Caslon, Baskerville,
Bodoni, and others have become generic names in the public domain.
Trademark protection of such names requires the addition of some
proprietary word(s), such as these hypothetical creations, "Acme New
Garamond", or " Typoluxe Meta-Baskerville".
COPYRIGHT. Copyright of typefaces can be divided into two parts:
copyright of the design itself; and copyright of the font in which the
design is implemented. In the U.S., typeface designs are currently not
covered by copyright. This is a result of reluctance by the copyright
office to deal with a complex field; by lobbying against copyright by
certain manufacturers whose profits were partially based on typeface
plagiarism; by a reluctance of congress to deal with the complex issue in
the recent revision of the copyright law.
The reluctance of Americans to press for typeface copyright may have been
influenced by a feeling that typeface plagiarism was good for U.S.
high-tech businesses who were inventing new technologies for printing, and
plagiarizing types of European and English origin. If competition from
Japan, Taiwan, and Korea becomes fierce in the laser printer industry,
then American firms may do an about face and seek the protection of type
design copyright to help protect the domestic printer industry. Such a
trend may already be seen in the licensing of typeface trademarks by
Xerox, IBM, Adobe, and Imagen in the U.S. laser printer industry.
In Germany, where typeface design has always been a significant part of
the cultural heritage, and where typefounding has remained an important
business, there are more than one kind of copyright-like protections for
typefaces. Certain long-standing industrial design protection laws have
been used to protect typeface designs in litigation over royalties and
plagiarisms. Further, there is a recent law, enacted in 1981, that
specifically protects typeface designs. New designs are registered, as
one does with copyright in most countries. This law only protects new,
original designs. It is available to non-German designers and firms.
Therefore, some type firms and designers routinely copyright new designs
in West Germany. This gives a degree of protection for products marketed
in Germany. Since multinational corporations may find it cheaper to
license a design for world-wide use rather than deal with a special case
in one country, the German law does encourage licensing on a broader scale
than would initially seem to be the case.
France, like Germany, has ratified an international treaty for protection
of typefaces. This 1973 Vienna treaty will become international law when
four nations ratify it. So far, only France and West Germany have done so,
and thus a design must be protected separately in each country. Even when
the treaty becomes law, it will take effect only in those countries that
hae ratified it. The treaty was principally the work of the late Charles
Peignot, a French typefounder, and John Dreyfus, an English typographer
and typographic scholar. Presently, typefaes may be registered for
protetion in France under a 19th century industrial design protection law.
In the U.S., there continues to be some movement for typeface design
protection. A proposed bill that would protect the designs of useful
articles, like type, has been in committee for a few years. It is not
clear that anything much is happening with it.
Digital fonts have access to a different form of copyright protection --
copyright of digital data and of computer programs. It has been
established that computer software is copyrightable. Therefore, software
that embodies a typeface, e.g. a digital font, is presumably also
protected. There is some objection to this kind of copyright, on the
grounds that the ultimate output of the program or the result of the data
(i.e. a typeface design) is not copyrightable. However, the current belief
expressed by the National Commission on New Technological Use of
Copyrighted Works is that software is copyrightable even if its function
is to be ultimately a non-copyrightable work. Hence, typefaces produced
by Metafont or PostScript(R), two computer languages which represent fonts
as programs, are presumably copyrightable. Some firms have copyrighted
digital fonts as digital data. The copyright office is currently reviewing
this practice to determine if it is acceptable.
Note that the designs themselves are still not protected in the U.S. A
plagiarist could print out large sized letters (say, one per page) on an
Apple Laserwriter, using a copyrighted PostScript digital font, and then
redigitize those letters by using a scanner or a font digitizing program
and thus produce a new digital font without having copied the PROGRAM or
DIGITAL DATA, and thus without infringing the copyright on the font. The
quality of the imitation font would usually be awful, but it wouldn't
violate copyright. Of course, the plagiarist would usually need to rename
the font as well, to evade trademark infringement. [As I write these
words, I have the guilty feeling that I have just provided a recipe for
type rip-off, but others have obviously thought of just such a scheme --
John Dvorak has even proposed something like it in one of his columns.]
DESIGN PATENT. The designs of typefaces may be patented in the U.S. under
existing design patent law. Many designs are patented, but type designers
generaly don't like the patent process because it is slow, expensive, and
uncertain. Nevertheless, some type do get patented, and it is a form of
potential protection. Note that this is Design Patent -- the typeface
doesn't have to be a gizmo that does something, it merely has to be unlike
any previous typeface. The drawback here is that most attorneys and judges
are not aware that there are more than two or three typefaces: say,
handwriting, printing, and maybe blackletter. Therefore, litigating
against infringement is an educational as well as a legal process. Type
theft is more subtle than knocking over a liquor store, though the returns
are greater.
Protections like design patent are available in many other countries, but
there is not an international standard (to my knowledge) so the situation
must be examined on a country by country basis.
INVENTION PATENT. Methods of rendering typefaces can be patented as
mechanical or electronic inventions. For example, the Linotype machinery
was protected by various patents, as was the IBM Selectric type ball. IBM
neglected to trademark the typeface names like Courier and Prestige, so
once the patents had elapsed, the names gradually fell into the public
domain (at the time, and for a dozen years or so, IBM was distracted by a
U.S. anti-trust suit). Most students of the type protection field believe
that those names are probably unprotectable by now, though IBM could still
presumably make a try for it if sufficiently motivated.
There is currently an interesting development regarding a patent for
outline representation of digital type as arcs and vectors, with special
hardware for decoding into rasters. This patent (U.S. 4,029,947, June 14,
1977; reissue 30,679, July 14, 1981) is usually called the Evans & Caswell
patent, after its inventors. It was originally assigned to Rockwell, and
in 1982, Rockwell sued Allied Linotype for infringement. Allied settled
out of court, having paid an amount rumored to be in the millions.
Rockwell sold the patent, along with other typographic technology, to
Information Internation, Inc. (III) which then sued Compugraphic for
infringement. According to the Seybold Report, a typographic industry
journal, Compugraphic recently settled out of court for 5 million dollars.
Although many experts believe the patent to be invalid because of several
prior inventions that were similar in concept, it nevertheless seems to be
a money-maker in corporate litigation. The Seybold Report speculated on
which firms III would go after next. Among the candidates suggested by the
Seybolds was Apple for its Laserwriter, which uses outline fonts. Since
the entire laser printer industry and the typesetting industry is moving
toward outline font representation, Apple is certainly not alone. The
Seybolds further speculate on whether the difference between
character-by-character CRT typesetting and raster-scan laser typesetting
and printing would be legally significant in such as case. Ultimately,
some firm will go for a court judgement, and the matter will be decided.
Although the Evans and Caswell patent doesn't have much to do with
typeface copyright per se, it does make many font vendors nervous.
TRADE SECRET. Given that typeface designs have relatively little copyright
protection in the U.S., they are often handled as trade secrets. The
secret must apply to the digital data or programs only, because the images
themselves are ultimately revealed to the public as printed forms. It is
much more difficult to reconstruct the formula of Coca-Cola from its taste
than it is to reconstruct the design of Helvetica from its look on the
page. The exact bitmap or spline outline of a digital font is usually not
reconstructable from the printed image, although CRT screen fonts at usual
resolutions (60 - 120 dots per inch) may be reconstructed by patient
counting and mapping of bits off a screen display. Thus, typeface
licenses often involve terms to protect confidential digital information.
Just as a firm will protect the secret of a soft drink recipe, so a type
firm will protect the exact nature of its digital data.
ETHICS. Some typographers are motivated by higher principles than greed,
profit, expediency, and personal interest. Idealists afflicted with
concepts of ethical behavior and a vision of typography as a noble art may
sometimes find it distasteful to use plagiarized types. Some graphic
designers insist on using typefaces with bona-fide trademarks, both to
ensure that the type will be of high quality, and to encourage creativity
and ethics in the profession. A consequence of plagiarism that is
sometimes overlooked is a general erosion of ethics in an industry. If it
is OK to steal typeface designs, then it may be ok to purloin other kinds
of data, to falsify one's resume, and so forth. Most professional design
organizations attempt to promote ethical standards of professional
behavior, and personal standards may extend to avoidance of plagiarisms.
The Association Typographique Internationale (ATypI) is an international
organization of type designers, type manufacturers, and letterform
educators. Its purpose is to promote ethical behavior in the industry,
advancement of typographic education, communication among designers, and
other lofty aims. Members of ATypI agree to abide by a moral code that
restricts plagiarism and other forms of depraved behavior (pertaining to
typography). These are noble purposes, but some members (especially
corporate members) of ATypI, confronted with the pressures and
opportunities of commercial reality, choose to plagiarize typefaces of
fellow members, the moral code notwithstanding. Since ATypI is a voluntary
organization, there is very little that can be done about most such
plagiarism. Some years back, the noted type designer Hermann Zapf resigned
from the ATypI Board of Directors in protest over the organization's
flaccid attitude toward plagiarists among its ranks. Zapf has since agreed
to sit on the board again, but criticism of the organization's inability
to prevent type rip-offs among its own members, not to mention by
non-members, continues to be heard. Moderates in ATypI believe that a
little ethical behavior is better than none.
Given the general attitude of users toward copyrighted video and software,
it is doubtful that ethical considerations will hinder most end-users'
attitude to plagiarized type fonts. A desire to have the fashionable
"label" or trademark may be a greater motivation toward the use of
bona-fide fonts than an ethical consideration.
DISCLAIMER
These notes are based on the author's review of available literature on
the subject of typeface protection, and on personal experience in
registering types for trademark, copyright, and patent. While they result
from careful research, no claim is made for accuracy; they are not
professional legal opinions or advice and should not be interpreted as
such. For legal counsel, it is advisable to consult an attorney. The term
"plagiarize" (and words derived from it) is used here in its dictionary
sense of "to take and use as one's own the ideas of another" and does not
imply that the practice of typeface plagiarism is either illegal or legal,
as legality is determined by the laws of a particular country.
The author is a professor of digital typography as well as a professional
designer of original digital typefaces for electronic printers and
computer workstations. He therefore has an identifiable bias toward the
inculcation of ethical standards and the legal protection of artistic
property.
--Charles Bigelow
Stanford University