richard@gryphon.CTS.COM (Richard Sexton) (04/06/88)
I dont know much about this and am looking for more info.
There is some bill somewhere which would allow font DESIGNS
to be copyrighted. Only new designs. Old ones arnt covered.
Snicker.
Anybody know any more ?
--
Remember me. Poke my boatman.
richard@gryphon.CTS.COM rutgers!marque!gryphon!richardken@cs.rochester.edu (Ken Yap) (04/06/88)
OK, stop this half-information. Here is a posting that explains the
situation.
Ken
Path: rochester!seismo!rutgers!unirot!patwood
From: patwood@unirot.UUCP (Patrick Wood)
Newsgroups: comp.text,misc.legal
Subject: Re: Font Copyrights (long!)
Message-ID: <447@unirot.UUCP>
Date: 25 Mar 87 04:02:16 GMT
References: <792@bobkat.UUCP> <445@unirot.UUCP> <446@unirot.UUCP>
Organization: Public Access Unix, Piscataway, NJ
Lines: 410
Summary: Bigelow's article
Xref: rochester comp.text:591 misc.legal:1185
What the hell, let's do it now...
The following is an article published in an upcoming issue of the
PostScript Language Journal. Since a similar version of this was
posted by Charles about a year ago to the net, I don't think I'm
doing my readers a disservice in distributing it here prior to the
mailing of the Journal. I think this article covers the issues better
than anything I've seen on the subject of typeface protection.
Pat Wood
Editor, The PostScript Language Journal
[I already did. - Ken]
-------------------------cut here and nroff/troff------------------------
COMMENTARY
Typeface Protection
By Charles Bigelow
_1. _P_r_e_a_m_b_l_e
The main question of typeface protection is: Is there any-
thing there worth protecting? To that the answer must cer-
tainly 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.
_2. _W_h_o _M_a_k_e_s _T_y_p_e _D_e_s_i_g_n_s?
Like other artistic forms, type is created by skilled arti-
sans. 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 cut-
ting the master image of a typographic letter at the actual
size on a blank of steel that is then used to make the
matrix from which metal type is cast. Punch-cutting 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. The particu-
lar marks are usually hand-written letters, though calligra-
phers may design type, and type designers may do calligra-
phy.
It usually takes about seven years of study and prac-
tice to become a competent type designer. This seems to be
true whether one has a Phd. in computer science, an art-
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 can require several months
to several years. 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 Hirakana induce designers to work in
teams of several people.
Although comparisons with other media can only be
April 6, 1988
- 2 -
approximate, a typeface family is an accomplishment on the
order of a novel, a feature film screenplay, a computer
language design and implementation, a major musical composi-
tion, 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 protec-
tion. It is reasonable to protect typefaces in the same
way.
_3. _T_h_e _P_r_o_b_l_e_m _o_f _P_l_a_g_i_a_r_i_s_m
A lack of protection for typeface designs leads to plagiar-
ism, piracy, and related deplorable activities. They are
deplorable because they harm a broad range of people beyond
the original designers of the type. First, most type pla-
giarisms 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; the plagiarist robs the original designer of
financial compensation for the work. This discourages
creative designers from entering and working in the field.
As the needs of typography change (on-line documents and
laser printing are examples of technical and conceptual
changes) new kinds of typefaces are required. Creative
design in response to such needs cannot flourish without
some kind of encouragement for the creators. In a capital-
ist society, the common method is property rights and pro-
fit. In a socialist (or, in the past, royalist) society, the
state itself might employ type artists. France, as a monar-
chy and as a republic has had occasional state sponsorship
of typeface design over the past 400 years. The Soviet
Union has sponsored the design of new typefaces, not only in
the Cyrillic alphabet, but also in the other exotic scripts
used by various national groups in the Soviet Union.
Those who would justify plagiarism often claim that the
type artists do not usually receive a fair share of royal-
ties anyway, since they have usually sold their designs to
some large, exploitive corporation. It is true that type
designers, like many artists, are often exploited by their
publishers, but plagiarism exacerbates the problem. Pla-
giarism deprives the designer of decent revenues because it
diverts profits to those who merely copied the designs.
Plagiarism gives the manufacturer yet another excuse to
reduce the basic royalty or other fee paid for typeface
designs; the theme song is that the market determines the
April 6, 1988
- 3 -
value of the design and cheap rip-offs debase the market
value of a face. For those interested in the economic
effects of piracy, it is clear that plagiarism of type
designs ultimately hurts individual artists far more than it
hurts impersonal corporations.
_4. _K_i_n_d_s _o_f _P_r_o_t_e_c_t_i_o_n _f_o_r _T_y_p_e
There are five main 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 litigation to prevent infringe-
ment 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); Helvet-
ica (U.S. Registration 825,989, March 21, 1967, also 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 some cases the registrant
may be different than 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 but
the trademark 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 that in some way resembles or
suggests the original trademark, without actually infringing
on it. Resemblance without infringement can be a fine dis-
tinction.
Some pseudonyms for Times Roman are: English Times,
London, Press Roman, Tms Rmn. Some for Helvetica are
Helios, Geneva, Megaron, Triumvirate. So far, there seem to
be none for Lucida. There are generic typeface classifica-
tions used by typographers and type historians to discuss
April 6, 1988
- 4 -
styles, trends, and categories of design. Occasionally
these apparently innocuous classification systems are
employed by plagiarists to devise generic pseudonyms, such
as Swiss 721 for Helvetica, and Dutch 801 for Times Roman.
It is not certain whether this usage of a generic classifi-
cation is more for clarification or for obfuscation. In
general, the proper tradename is a better indicator of iden-
tity, quality, and provenience in typefaces than a generic
name. Some people believe that the same is true for other
commodities such as wine, where taste is important.
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 is the generic part. The generic word type is usu-
ally 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 gen-
erally 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, usually the surnames of illustrious designers like
Garamond, Caslon, Baskerville, Bodoni, and others have
become generic names in the public domain. Trademark pro-
tection of such names requires the addition of some
proprietary word(s), as with 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 based on typeface
plagiarism; and 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 copy-
right may have been influenced by a feeling that typeface
plagiarism was good for U.S. high-tech businesses who were
April 6, 1988
- 5 -
inventing new technologies for printing, and plagiarizing
types of foreign origin (Europe and England). If the situa-
tion becomes reversed, and foreign competition (from Japan,
Taiwan, and Korea) threatens to overcome American technolog-
ical superiority in the laser printer industry, then Ameri-
can firms may do an about-face and seek the protection of
typeface copyright to help protect the domestic printer
industry. Such a trend may already be seen in the licensing
of typeface trademarks by Adobe, Hewlett Packard, IBM,
Imagen, and Xerox 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 protec-
tion laws have been used to protect typeface designs in
litigation over royalties and plagiarisms. Further, there
is a recent law, the so-called Schriftzeichengesetz enacted
in 1981, that specifically protects typeface designs. New
designs are registered, as is done with copyright in most
countries. This law only protects new, original designs.
It is available to non-German designers and firms. There-
fore, 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 cor-
porations 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 have ratified it. The treaty was prin-
cipally the work of the late Charles Peignot, a French
typefounder, and John Dreyfus, an English typographer and
typographic scholar. Presently, typefaces may be registered
for protection 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 pro-
tect the designs of useful articles, like type, has been in
committee for several years. It seems to be going nowhere.
Digital (as opposed to analog) fonts may be protected
by copyright of digital data and of computer programs. It
has been established that computer software is copyright-
able. Therefore, software that embodies a typeface, e.g. a
digital font, is presumably also protected. There is some
April 6, 1988
- 6 -
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 produce ultimately
a non-copyrightable work. Hence, typefaces produced by
Metafont or PostScript(R), two computer languages which
represent fonts as programs, are presumably copyrightable.
Typefaces represented as bit-map data, run-length codes,
spline outlines, and other digital data formats, may also be
copyrightable. Some firms do copyright digital fonts as
digital data.
Note that the designs themselves are still not pro-
tected 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 pro-
gram and thus produce a new digital font without having
copied the program or digital data, and thus without infr-
inging the copyright on the font. The quality of the imita-
tion font would probably be awful, but it wouldn't violate
copyright. Of course, the plagiarist would need to rename
the font 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 some-
thing 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 generally 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 _D_e_s_i_g_n 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, handwrit-
ing, printing, and maybe blackletter. Therefore, litigating
against infringement is an educational as well as a legal
process. It is easy to see that typeface theft is more sub-
tle than knocking over a liquor store; it may not be illegal
and the returns may be 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 exam-
ple, the old hot-metal Linotype machinery was protected by
April 6, 1988
- 7 -
various patents, as was the IBM Selectric typewriter and
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 without IBM
doing anything about it (at the time, and for a dozen years
or so, IBM was distracted by a major 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 a noteworthy development regarding a
patent for outline representation of digital type as arcs
and vectors, with special hardware for decoding into ras-
ters. 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 Informa-
tion Internation, Inc. (III) which then sued Compugraphic
for infringement. According to the Seybold Report, a
respected typographic industry journal, Compugraphic
recently settled out of court for $5 million. Although many
experts believe the patent to be invalid because of several
prior inventions similar in concept, it nevertheless seems
to be a money-maker in corporate litigation. The Seybold
Report has speculated on which firms III would litigate
against next. Among the candidates suggested by the Sey-
bolds was Apple for its LaserWriter, which uses outline
fonts. Since the entire laser printer industry and the
typesetting industry is moving toward outline font represen-
tation, 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 hold out for a court judgement,
and the matter will be decided.
Trade Secret. Given that typeface designs have relatively
little copyright protection in the U.S., they are often han-
dled 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 Hel-
vetica from its look on the page. The exact bitmap or
spline outline of a digital font is usually not reconstruct-
able from the printed image, although CRT screen fonts at
usual resolutions (60 - 120 dots per inch) may be recon-
structed by patient counting and mapping of bits off a
screen display. Typeface licenses often contain stipula-
tions that the digital data will be encrypted and
April 6, 1988
- 8 -
confidential. 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 princi-
ples than greed, profit, expediency, and personal interest.
Idealists enthused with concepts of ethical behavior and a
vision of typography as a noble art may 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 okay to steal typeface
designs, then it may be okay to purloin other kinds of data,
to falsify one's resume, to misrepresent a product, and so
forth. Most professional design organizations attempt to
promote ethical standards of professional behavior, and per-
sonal 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 goals, but some members (especially corporate members)
of ATypI, confronted with the pressures and opportunities of
commercial reality, nevertheless 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, a
world-famous type designer resigned from the ATypI Board of
Directors in protest over the organization's flaccid atti-
tude toward the plagiarists among its ranks. He has since
agreed to sit on the board again, but criticism of the
organization's inability to prevent type rip-offs by its own
members, not to mention by non-members, continues to be
heard. Moderates in ATypI believe that a few morals are
better than none. It is not clear whether their philosophi-
cal stance derives from Plato, Hobbes, or Rousseau.
Given the general attitude of the public toward copy-
righted video and software, it is doubtful that ethical con-
siderations will hinder most end-users' attitude to plagiar-
ized 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.
_5. _F_u_r_t_h_e_r _R_e_a_d_i_n_g
The State of the Art in Typeface Design Protection, Edward
April 6, 1988
- 9 -
Gottschall, _V_i_s_i_b_l_e _L_a_n_g_u_a_g_e, Vol. XIX, No. 1, 1985. (A
special issue on The Computer and the Hand in Type Design -
proceedings of a conference held at Stanford University in
August, 1983).
_D_e_r _S_c_h_u_t_z _T_y_p_o_g_r_a_p_h_i_s_c_h_e_r _S_c_h_r_i_f_t_z_e_i_c_h_e_n, by Guenter Kel-
bel. Carl Heymans Verlag KG, Cologne, 1984. (A learned
account in juridical German prose, of the significance of
the Vienna Treaty of 1973 and the West German
Schriftzeichengesetz of 1981).
_6. _D_i_s_c_l_a_i_m_e_r
These notes were originally prepared at the request of Brian
Reid for informal distribution. They are based on the
author's review of available literature on the subject of
typeface protection, and on personal experience in register-
ing types for trademark, copyright, and patent. However,
they are not legal advice. If one is contemplating protect-
ing or plagiarizing a typeface, and seeks legal opinion, it
is advisable to consult an attorney. The term plagiarize and
words derived from it are used here in its dictionary sense
of to take and use as one's own the ideas of another and
does not mean that the practice of typeface plagiarism is
illegal; that is determined by the laws of a particular
country.
_C_h_a_r_l_e_s _B_i_g_e_l_o_w _i_s _a _p_r_o_f_e_s_s_o_r _o_f _d_i_g_i_t_a_l _t_y_p_o_g_r_a_p_h_y _a_t
_S_t_a_n_f_o_r_d _U_n_i_v_e_r_s_i_t_y _a_n_d _a _p_r_o_f_e_s_s_i_o_n_a_l _d_e_s_i_g_n_e_r _o_f _o_r_i_g_i_n_a_l
_d_i_g_i_t_a_l _t_y_p_e_f_a_c_e_s _f_o_r _e_l_e_c_t_r_o_n_i_c _p_r_i_n_t_e_r_s _a_n_d _c_o_m_p_u_t_e_r
_w_o_r_k_s_t_a_t_i_o_n_s. _M_r. _B_i_g_e_l_o_w _a_n_d _h_i_s _p_a_r_t_n_e_r _K_r_i_s _H_o_l_m_e_s
_d_e_s_i_g_n_e_d _t_h_e _L_u_c_i_d_a _t_y_p_e_f_a_c_e _f_a_m_i_l_y _w_h_i_c_h _i_s _n_o_w _w_i_d_e_l_y _u_s_e_d
_o_n _v_a_r_i_o_u_s _l_a_s_e_r _p_r_i_n_t_e_r_s.
April 6, 1988