[misc.legal] font copyrighting

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!richard

ken@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