Open Type Questions: Issues in Copyright Law and Protecting Typeface Design
Before his death in 1561, the typographer Claude Garamond finished creating what would be perhaps his greatest legacy, his namesake typeface: Garamond.[1] This full process would have taken him months, if not years, to complete,[2] resulting in a typeface that has proved the inspiration for countless others.[3] And from 1956–57, Max Alfons Miedinger spent a year designing Helvetica, a typeface so famous, they made a movie about it. [4] Both individuals were the authors of their own original work; it’s also evident that both works were imbued with a modicum of creativity and fixed in a tangible medium of expression.[5] And yet? Public domain and jurisdiction issues aside, neither typeface is protected under United States copyright law.[6] This may seem odd: after all, when an writer writes a book, she is automatically granted copyright protection, and that doesn’t seem that much different than a typographer like Max Miedinger spending a year creating Helvetica.[7] At the same time, one might ask, should you protect the rights of something that, if done well, you shouldn’t even notice in the first place?[8]
The issues surrounding copyright and typefaces are complicated, not least because of the terms of art used—not only in the legal context, but also in the graphic design context. Among graphic designers, discussions of “ascenders,” “serifs,” “counters,” and “x-heights” can quickly become…colorful,[9] but nonetheless remain obscure to a non-designer whose only interaction with “fonts” is picking something from the Microsoft Word drop down menu that’s more exciting than Times New Roman.[10] For the purposes of a legal discussion, however, it is most important to note the difference between a “typeface” and a “font,” and the probably-less-familiar-sounding “glyph.” While the terms “typeface” and “font” are often casually employed as equivalents in everyday conversation, in terms of design practice (and the law), they are distinct things.[11]
First, we should understand “typeface” to denote a more general subject of discussion: “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.[12] Second, a “font” is then “an article in which a typeface resides as the implement of printing technology, regardless of the medium or form.”[13] So, for example, “Helvetica” in general is a typeface, whereas “12-point Helvetica Italic” is a font.[14] You can probably most easily conceptualize this by remembering that, in the early days of typography, printers used pieces of movable type, i.e., each letter was a small cube of lead (a “punch”) that was covered in ink, and then created a letterform when pressed into paper via a printing press; before the advent of modern technology, that cube of lead would be considered the font.[15] Last, a glyph is then a drawing of a letter in that font (e.g., a drawing of a lower-case “H” in 12-point Helvetica, or that image on your computer screen).[16]
As any copyright student hopes to remember reflexively on their final, in order for a work to be considered eligible for copyright protection, it must be an original work of authorship, fixed in a tangible medium of expression.[17] And you’d risk being obtuse if you claimed typefaces like Helvetica don’t at least seem to meet the requirements for this.[18] However, despite our intuitions, current black-letter law and the U.S. Copyright Office are pretty clear on this: typefaces aren’t protected by copyright, and “typefonts” probably aren’t, either.[19] Part of the 1976 Copyright Act, 37 C.F.R. § 202.1(e) of the Code of Federal Regulations states explicitly that a “typeface as typeface” isn’t eligible.[20] This was done amid concerns that publishers would be unaware when a printer was using an infringing typeface, leaving the publisher open to injunctions or damages.[21]
In Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978)—shortly after the passage of the 1976 Act—the Fourth Circuit held that typefaces weren’t copyrightable,[22] and federal regulations expressly omit typefaces from protection under copyright law.[23] Twenty years later, with the development and proliferation of computer-based “scalable” font technology,[24] the Court opened the door for at least some copyright protections for what we’d normally call fonts in Adobe Systems, Inc. v. Southern Software, Inc.[25] In that case, the court for the Northern District of California held that while typefaces themselves are not afforded copyright protection, the computer programs underlying them are protectable under copyright law.[26] So, the Helvetica typeface, per se, is not protected by copyright law, but the computer program, i.e., the code that tells your computer how to draw a 12-point, italic glyph in Helvetica on your screen, is.[27] Essentially, the court found that since copyright law protected computer programs, the computer programs that generated glyphs were also protected, even if the glyphs themselves weren’t.[28] So, the code behind fonts earn copyright protection; that modern-day computer code is doing the work of a pre-20th-century lead type punch. And in the modern era of digital typesetting and desktop publishing, computer programs provide the role that lead blocks once did, instructing one’s computer how to depict a font on a screen in a glyph.
Still, that image of a leather-aproned craftsman (or apron-less computer coder), forging molten lead slugs into delicate serifs (or arranging zeros and ones to draw the slant of a serif on your screen) can’t help but foreground the skill and labor it once took to create a single font, let alone a full typeface. Before technological advances in the 20th century, creating a font—that single size and weight of a single typeface—could take hundreds of hours; creating a full typeface could take over a decade.[29] With this in mind, one is tempted to assume that such extensive, creative efforts would trigger copyright protection.[30]
Yet some raise valid concerns whether typefaces warrant copyright protection. Two of these concerns have included separability and, on a fundamental level, the “merger doctrine.”[31] For example, issues of “separability” are complicated when it comes to a typefaces and fonts. While someone—especially a font designer who has spent a year working out the minute details of those x-heights on the lower-case “H”—would advance an argument that a typeface is a “pictorial, graphic, or sculptural work,”[32] how feasible is it then to “separate” its artistic elements (copyrightable) from its functional elements (non-copyrightable)?[33] Critically, the merger doctrine may also critically come into play. Its premise is that if “one inextricably merges a given idea with its expression, the expression is not copyrightable.”[34] In the context of fonts and typefaces, one must then ask—perhaps on a case by case basis—whether a particular typeface or font “deviates” enough, as it were, from a “standard” letterform to earn copyright protection.[35] Or, on in light of the merger doctrine, should there be a blanket lack of copyright protection? After all, there are only so many ways to depict the letter “H” before it ceases to, well, to be of any use as the letter “H.”[36] And, on the level that perhaps most drives such discussions—the level of commerce—we need to ask whether typefaces need copyright protection in the first place: the lack of protection doesn’t seem to be inhibiting creativity in the field or limiting the market potential for type design.[37]
Typefaces are everywhere and their use intersects with, quite simply, everything. It’s hard to argue they aren’t “pictorial, graphic, or sculptural” works.[38] It is also hard to argue with the idea that type designers, whose hard work has long been subject to piracy, finally deserve a day in court based not around the code that allows their designs to be useful, but the designs themselves.[39] On one hand, litigation continues to show that type designers and foundries still have options for remedies under the law, usually on the basis of the computer code supporting what we seem on the screen or page.[40]
Unfortunately, even these strategies for legal relief options appear to be at risk, as the Copyright Office appears to be narrowing its criteria for what aspects of type design may be registered for copyright protection—criteria that could threaten type designers ability to even license their work in the first place.[41] It’s been almost 25 years since Adobe, the last time the Court substantially re-evaluated its approach to typeface protection under the Copyright statute. Given the rapid expansion of desktop publishing, digital licensing, and, frankly, an increasing general interest in the field of typography—did we mention they made a movie about Helvetica?—it seems like a good time for the Courts and the Copyright Office to take another look at adopting an equitable legal approach for type designers and type users alike.[42]
Footnotes
