Legal Protection for Fonts

One frustrating aspect of making fonts is that they are so easily stolen. I don’t mean somebody breaking into my home (or even my laptop) and taking fonts, but rather font piracy. When a single font is only 20K or even 100K, entire families or more can be easily attached to an email or distributed via some “sharing” arrangement. What legal protections do font makers have for their intellectual property (IP)?

First, the standard disclaimer: I’m not a lawyer. If you want legal advice, whether it’s for protecting your own fonts, or determining if your usage or distribution of fonts is legal, you should consult a lawyer. This is only an attempt to provide some background.

Generally, the protections fall under three categories: trademark, patent and copyright. Each protects a different class of things, and each has different scope. Patents and trademarks are country-specific, while copyright is more international in nature. In the USA, patents have the shortest life-span, copyrights are more lengthy, and trademarks can be eternal.

Trademarks are legal protection for a word, name, logo, design or phrase that distinguishes a specific product in the marketplace. More information can be found from the International Trademark Association or the US Patent & Trademark Office. With fonts, a trademark can protect the name of the font (and the name of the foundry, which may be part of the font name). If properly maintained, trademark rights can continue indefinitely. The main protection a trademark on the font name provides is against somebody else giving their font the same name as your font, creating confusion in the marketplace.

Patents are mostly known for protecting newly invented processes (utility patents), but in the USA there is a lesser-known variety of patents called design patents. A regular utility patent might be used to protect an entirely new alphabet, such as the one funded by George Bernard Shaw’s estate, but in general one does not expect utility patents to be applied to fonts or typeface designs. US utility patents last for 20 years from the filing date.

On the other hand, a US design patent is specifically intended to cover ornamental and visual rather than functional differences – and in fact the first design patent was issued for a font of metal type, in the mid-1800s. However, design patents have a shorter lifespan than utility patents, just 14 years, but from the date of grant rather than from the date of filing. See this article by Frank Martinez for more details on design patents for protecting digital fonts (as well as some of his other thoughts).

The last form of IP protection for fonts is through copyright. One issue that is often quoted and sometimes confuses the question of protection for fonts in the USA is that the US Congress specifically eliminated copyright protection for the abstract design of a typeface in 1974. This places the US in a rather odd space, where somebody who spends two seconds taking a photograph has the visual appearance automatically protected by copyright, but somebody who spends months designing a typeface does not. The European Union and most countries that have strong traditions of respecting intellectual property generally allow the abstract designs of new typefaces to be protected by copyright.

However, even without copyright protection for the design of a font (in the US), digital fonts are widely recognized (in the US and many other countries) as being protected by copyright as computer software. This principle has been explicitly upheld in US federal district court in the very informative summary judgment rulings in the Adobe v SSI case (1997). So, when font pirates talk about how what they’re doing is legal because fonts aren’t protected by copyright under US law, we know this simply isn’t true.

Now, I’ll break for some random wild speculation. Again, I’m not a lawyer, so I make no claims that these ideas would hold up in court, but I think they make interesting thought experiments.

It would be interesting to see what the PTO would do if somebody tried to trademark the likeness of a font. After all, (as an example) the distinctive Disney word logo is a trademark, and I’d wonder whether a font which implemented the individual letters of that logo might be considered infringing. So why can’t you trademark the distinctive likeness of a font the way you can a logo?

In a related issue, I understand hand-lettering is protected by copyright. So if we hand-letter our designs prior to turning them into a digital font, would the digital font then be a derivative work from the hand-lettering? Wouldn’t that mean that the abstract design of the font – as seen in the original hand-lettering – is protected?

(In a future post, I’ll discuss the advantages and limitations of technical means to protect fonts – copy protection.)

19 Responses

  1. Excellent background info Thomas — I anxiously await your post on the technical aspects of copy protection with fonts. It’s a matter that many people have asked me about.

  2. Hi Mordy,Good to “see” you here. Note that I was thinking about copy protection as such, not embedding bits (fsType), which is what I suspect you’re thinking of. Though, come to think of it, that would be an excellent topic for a post as well.

  3. Don McCahill says:

    RE: HandletteringIf you did hand letter the fonts, a requirement would be that you “publish” them, according to my understanding of copyright law. (I’m no lawyer either).That wouldn’t be a big step, since the definition of publishing I understand is used is making the material available to others. Showing the lettering around the office would probably not count, but showing it off at a user group meeting would probably be considered publishing it.(Damn, I am glad I’m not a lawyer.)

  4. Don,Hmmm. Well, I’m not a lawyer either, but the US Copyright Office FAQ says:”Copyright protection subsists from the time the work is created in fixed form.”So, having it on paper seems to be good enough. That’s certainly what I’ve always heard from other sources.Cheers,T

  5. Don McCahill says:

    Perhaps my interpretation bears more on the Canadian law. I got the information from a lawyer who did a lesson on copyright for my web design students.Don

  6. Don,Perhaps you misunderstood the lawyer? Here are a couple of quotes from the Canadian Intellectual Property Office, which is the government agency for copyright in Canada:”Copyright law rewards and protects your creative endeavour by giving you the sole right to publish or use your work in any number of ways. You may also choose not to publish your work and to prevent anyone else from doing so.””You may have a brilliant idea for a mystery plot but until the script is actually written, or the motion picture produced, there is no copyright protection. In the case of a game, it is not possible to protect the idea of the game, that is, the way the game is played, but the language in which the rules are written would be protected as a literary work. Copyright is restricted to the expression in a fixed manner (text, recording, drawing) of an idea; it does not extend to the idea itself.”Again, they seem pretty clear that copyright kicks in as soon as you have it on paper.(An interesting question arises as to what the US or Canadian copyright offices consider a “fixed form” or “fixed manner” for software. But that’s a separate issue.)Regards,T

  7. Hey Thomas — just a heads up that I posted a link on my blog about your excellent blog here.

  8. Teri Pettit says:

    Regarding your two “wild speculations”, I suspect neither one of them would be very useful. (Note that I’m not a lawyer either, this is just my speculation, etc.)”So why can’t you trademark the distinctive likeness of a font the way you can a logo?”I imagine you could, if you designed the font and then used it only in such as way as to distinguish or represent your company or a separate product of your company. So, for example, if a company producing a television program called “The Krinklies Show” designed a font that was very visually distinguishable, and used it on not only the title screen for that show, but the scrolling credits and all related material, so that people familiar with the show would immediately think “Hey, that must be about The Krinklies Show” when they saw the font, then yes, I’m pretty sure they could trademark the font as symbolizing their TV show.But a font (or anything else) can’t be a trademark for itself, even if it is very recognizable like Quake or Radz. It has to be a trademark for something else. And trademarks have a concept of dilution, where if a company does not pursue protecting it to the point where it ceases to be associated in the public mind with their product, they lose the right to it. So they’re potentially eternal, but also the easiest to lose without constant vigilance. It’s all about preventing identity theft, not design theft. So it wouldn’t help anyone who wanted to market their font.”In a related issue, I understand hand-lettering is protected by copyright. So if we hand-letter our designs prior to turning them into a digital font, would the digital font then be a derivative work from the hand-lettering?”This one I’m less sure about. I don’t know for sure how the copyright law treats handlettering, but I strongly suspect that it isn’t a style of handlettering, but rather a specific handlettered composition. I believe that the individual letterforms, even handlettered ones, wouldn’t be copyrightable. Just as someone who produces work in a distinctive visual style, like those cartoons made with lots of overlapping wiggly little strokes (I forget who used to make them), or the black and white borders and polkadot background of Mary Engelbreit graphics, can copyright any of their images, but they can’t copyright the style or small elements of their images. Even if their style is distinctive enough that someone else seeing an imitation would be inclined to mistake the artist, imitations of the style are not considered derivative works. Take-offs on the entire composition, however, are treated as derivative, even if they are in a very different visual style, as long as somebody seeing both the original and the derivative work would recognize the latter as being based on the former.If the protection on handlettering is similar, then it wouldn’t prohibit anything except someone making a work that was too similar to an entire handlettered work that had been previously published. So if you published your handlettered arrangement of the alphabet, nobody else could design a similar digital typeface, and then use it to produce a poster that looked enough like your previously published handlettered alphabet arrangement that the inspiration would be recognizable. But they could use it to typeset anything else.

  9. Mordy, thanks for the PR.Teri, that’s an excellent analysis. On the trademark front, I wonder if it would matter if the typeface was a custom and exclusive corporate identity design, part of their trade dress as it were? (Probably mis-using the term “trade dress” here.) Not sure if you’re right about the hand-lettering part. It would be very interesting to see that angle contested in court.Cheers,T

  10. David Hamuel says:

    > like those cartoons made with lots of overlapping wiggly little strokes (I forget who used to make them)David Levine (?)The work/style by Taylor Jones is/was almost 100% as Levine. Jones once said that he knew that the Los Angeles Times Syndicate picked him up in 1974 because he could draw caricatures like David Levine.There is nothing wrong with copying & emulating . As long as you view that as educational. And the most important thing: you know when to give up!> If you did hand letter the fonts, a requirement would be that you “publish” them, according to my understanding of copyright law.You can register your work – easier to prove your case; without it – wouldn’t be economically feasible to file suit.> Again, they seem pretty clear that copyright kicks in as soon as you have it on paper.A work is copyrighted the moment it’s created.But I’m no lawyer. I’m no lawyerAnd if you want to read the book “Future Codes: Essays in Advanced Computer Technology and the Law” (1997) by Curtis KarnowSorry about off-topic

  11. David Hamuel says:

    I emailed to Judge Alito (well, not to him directly) and asked about this issue – intellectual property; and what Mr. Alito is going to do about that:The Code of Federal Regulations:“The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained: . . .typeface as typeface ‘ 37 CFR 202.1(e).The House of Representatives report that accompanied the new copyright law ( passed in 1976):“The Committee has considered, but chosen to defer, the possibility of protecting the design of typefaces. A ‘typeface’ can be defined as a set of letters, numbers, or other symbolic characters, whose forms are related by repeating design elements consistently applied in a notational system and are intended to be embodied in articles whose intrinsic utilitarian function is for use in composing text or other cognizable combinations of characters. The Committee does not regard the design of typeface, as thus defined, to be a copyrightable ‘pictorial, graphic, or sculptural work’ within the meaning of this bill and the application of the dividing line in section 101.” H. R. Rep. No. 94-1476, 94th Congress, 2d Session at 55 (1976), reprinted in 1978 U.S. Cong. and Admin. News 5659, 5668.Let’s wait and see

  12. Eliott Peacock says:

    Really appreciate the thoughtful discussion you started here. Here’s a question related to the issue that I am trying to answer: is using a copyrighted font in a company logo infringement? Anyone know the answer?

  13. U.Stiehl says:

    Concerning the question of Eliott Peacock:”Is using a copyrighted font in a company logo infringement?”Answer: The use of a font for typesetting a name, a slogan etc. in a company logo is a legitimate as the use of a font for typesetting advertisements, posters, books, magazines etc.

  14. Si says:

    Concerning the question of Eliott Peacock:”Is using a copyrighted font in a company logo infringement?”Answer: probably not. But this EULA doesn’t allow it…http://www.p22.com/support/license.html

  15. U.Stiehl says:

    I visited the above-mentioned P22 website and discovered with much surprise that the P22 foundry claims to own the copyright to a font rendering the handwriting of the French painter Paul Cezanne: “P22′s Cézanne font allows you to beautify your documents with a faithful rendition of the artist’s handwriting”. In the French copyright act we read in Article L 121-1 dealing with “droits moraux” that this right is eternal and inalienable: “Il est perpétuel, inaliénable et imprescriptible.” Therefore it is unlikely that the P22 foundry owns the right to make a rendition of Paul Cezanne’s handwriting. I would recommend prior to buying any font from this P22 foundry to obtain a written affidavit from a lawcourt expert that fonts such as this Cezanne handwriting rendition do not infringe upon the French or other copyright acts which protect the authors’ “droits moraux”.

  16. Ulrich, I think you are far, far off base there. You need to read more about the difference between the moral rights of the author and proprietary rights in French law. For example:http://en.wikipedia.org/wiki/French_copyright_lawAs the font was created for the Philadelphia Museum of Art, presumably they own some Cezanne paintings and granted appropriate rights. If Cezanne’s successors wished to object, based on their moral rights, they could presumably do so.In any case, if you have doubts about this particular case, you should take them up with P22.Cheers,T

  17. U.Stiehl says:

    “far off base” is certainly correct, inasmuch as the “company logo” and the “signature” questions are not copyright questions alone. But since Eliott Peacock and “Si” seem to have left this thread, there is no need to expatiate on these difficult legal questions.

  18. Si says:

    I think P22 are a special case, I’d guess that to use the trademarks associated with the various artists they have to agree to tight restrictions that prevent users making money off the artist’s “brand”. But the example was just a “buyer beware” warning to read the license before using a font as the basis of a logotype – EULAs like this are unusual, but P22 isn’t the only foundry with this type of restriction.

  19. James Pepper says:

    I copyrighted “The Pepper Gospels” in 2005 and 2006 which contain a different historic calligraphy in each chapter. I was interested in font development because I have whole chapters with each type of script and I thought that there would be plenty of opportunity to scan and develop glyphs as bible chapters are often long and have interesting combinations of letters. Somehow I found your posting and I have to tell you I have a copyright on my handwriting as art. I have a whole New Testament that is also copyrighted from 1999.It is also illuminated and I have the whole thing laid out in Adobe Photoshop and Indesign format and am trying to figure out how to sell it on the Internet. Do I use PDF and how do I set it up so I can make CDs with copy protection? Sorry I am not technologically advanced, I write bibles the old fashioned way, without computers. Although I did develop a new way to scan illuminated mansucripts with the help of the Getty and the Met, since nobody knew how to do it before me. Examples are on my website. The odd thing about your technology is that it makes my bible capable of being seen, because it is a full color bible the Gospels are 565 pages with 303 illuminated pages and so for people to afford it, it has to be digital. Just the Gospel of Saint Luke has 25 full page carpet pages and over 650 illustrated initials.I wanted to make a book on the graphic art of the Bible by showing the scripts used and I wanted to figure out how to develop fonts with them and show them side by side. This would probably work for your fonts too. If you want I could write bible pages with script based on your fonts. Just an idea.My work was blessed by Pope John Paul II and the Archbishop of York making it ecumenical, all of christendom is united behind this work. CBS and ABC have covered this story.I am a Methodist and the Bible is the KJV.My scripts were designed from studying manuscripts from the 3rd century to the present and so much of the calligraphy is not seen today.Sincerely,James Pepper

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author-photo-thomas-phinney

Thomas Phinney

Adobe type alumnus (1997–2008), now VP at FontLab, also helped create WebINK at Extensis. Lives in Portland (OR), enjoys board games, movies, and loves spicy food.

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