The decision paper of the EU trademark office.

Some additional words from Mr. Steinert on the German typeforum to Frutiger Next and its development.

http://www.typeforum.de/news_339.htm -
http://www.typeforum.de/news_254.htm

--astype.de--

After perusal of the legal decision, it seems to me that Heidelberger Druckmaschinen AG could not register "Frutiger Next" as a design.

Is this correct?

I don't know any details but I gather there was some problem because Frutiger was a pre-existing design. It seems to me that they could have registered the italic only, but I really don't know. I will inquire.

> they could have registered the italic only

There also exist invalidity decisions concerning the italic styles,

e.g. this decision http://www.sanskritweb.de/files/segoe3.pdf

For both regular and italic fonts, exactly the same letters ("a", "c", "e", "t", "g", "3", "5", "6", "9" etc.) are "rightfully observed" by the invalidity division. See section 11 on page 4 of file segoe3.pdf

Nowadays not only typefaces are pirated, sorry "copied", but court decisions too ...

Uli, thank you so much for this! My God, I had no idea Steve had so totally cloned the italic as well.

And what is Microsoft saying in the pdf you link to? Essentially this: We do not dispute that the designs are identical. We dispute that Linotype sold this data before 2004.

What a crock of S-C-H-E-I-S-S-E. We all know that Frutiger Next has been sold by Linotype for several years now.

Sorry, Steve Matteson - I love you but you should have wiped your ---- before you consented to get involved in this really filthy project.

I'm sorry to be so crude, but even Goethe was when the occasion demanded, and I think this occasion demands it.

A lot of people need to wipe their ---- here and this is what I suggest to the Microsoft corporate people:

Let MS pay off Frutiger and Linotype.

Let MS in future describe the typeface as a specially designed tribute to the great Adrian Frutiger by his great admirer Steve Matteson.

That is it. End of story. Nobody will ever talk about it again.

And as for you font people at MS, I have this to say. The next time you need a new typeface, whether it's for corporate ID or for something else, do not go to a slippery autodidact, a professional cloner, or a hinting technician. Go to one of the acknowledged masters now in productive late middle age. You have four good choices: Unger, Carter, Berlow, Stone. All four are at the height of their powers, and all four are hungry. These are the designers who can do the work you need done, and do it without disgracing you. And do it cheap. Guys --- have you thought about your futures? Do you really think Microsoft is going to keep on retaining you if you continue to get it into these endless PR, technical, and legal messes? Do you really think you are serving your company well by embarassing it as much as you have in the past two years? And this at the point when Microsoft most needs you to be making superb decisions? When there is so much at stake?

Guys, do you think Microsoft likes being the loser in a legal dispute?

A note on website statistics:

At the top of this page is stated that this thread has a total of "730 reads" (at this very moment, while I write this), whereas my website statistics says today that file segoe3.pdf has a total of "24 downloads", i.e. 3.3 per cent (24 out of 730).

At another thread, the ratio was even worse: Only 1 % downloads of a linked file in comparison with nearly 1000 "reads" of the thread. Anyone who makes links to one's own files at one's own websites will confirm similar ratios.

So I wonder: What does the expression "reads" really mean?

It probably means that most of the people who read this thread already had the pdfs. Of course, they can't comment, now that their company has shot them in the foot by making it Microsoft's legal position that Frutiger and Segoe are identical. Since Segoe/Frutiger is said to be such a vital part of the Vista UI, it will be interesting to see how this plays out. I don't envy any of the participants their present position. But the moral is, if you don't steal a font, a lot of bad things don't happen to you. What's the old advice ... thou shalt not steal ... something like that?

> thou shalt not steal

Theft is an inappropriate legal term in this case. For the legal background of the Segoe case concerning the European laws read the text file

http://www.sanskritweb.net/forgers/segoe.txt

I cannot entirely agree with this without further information, as I am not convinced that in common law argument forgery is anything more than a particular kind, or subset, of theft.

OED defines theft as 'The action of a thief; the felonious taking away of the personal goods of another; larceny; also, with a and pl., an instance of this. Forgery, by contrast, is '3. The making of a thing in fraudulent imitation of something; also, esp. the forging, counterfeiting, or falsifying of a document. For the use in Law see quot. 1769.' That quote, from no less than Blackstone is:

1769 Blackstone Comm. IV. 245 Forgery, or the crimen falsi..‘the fraudulent making or alteration of a writing to the prejudice of another man’s right.’

I am certainly willing to accept your position that the proper term to be used here is forgery, but I would want German, British and American legal opinions on that before coming to a firm opinion of my own. Well, and I would also, since I was quoting from the Bible, want to hear a Biblical law opinion as well.

I have a question. You write, in the referenced webpage,

'By the same token, "Frutiger" and "Myriad" are regarded
as "identical". Therefore, Adobe Inc. is not allowed to
register its forgery "Myriad" as "new" and "individual"
design in the European Community.'

This implies that Adobe has attempted to register Myriad and that the EU has determined that it is identical to Frutiger. I have not heard of this actually occurring. Has it? If so, could you document it? Or were you stating a hypothetical case? If so, I think it would have been helpful to have stated that.

You point out that Microsoft has a right of appeal, but I suspect that the position enunciated by its own lawyers - that the typefaces are identical - cuts off any possibility for Microsoft to prevail in future actions of any kind with regard to this typeface. Who, by the way, is Graf von so and so? Do you happen to know, Uli?

You point out that Microsoft has a right of appeal, but I suspect that the position enunciated by its own lawyers - that the typefaces are identical - cuts off any possibility for Microsoft to prevail in future actions of any kind with regard to this typeface.

The judgement states that Linotype's observation that the Segoe and Frutiger are identical is uncontested by Microsoft. That seems to me something less than a positive statement by Microsoft: it may simply mean that they did not elect to answer this observation at all. Could they choose to address it in an appeal? I don't know.

Hmm. You think I have overstated MS's position? Perhaps I have. I will have to reread the material. In any case, in common law, you can't appeal factual findings, roughly speaking, but only the application of law to those findings -- I think. How this works for the EU I have no idea. There is also only so much we can learn from the rather sparse material on display here. We have not seen any of the briefs, we have not heard any of the arguments. Whatever the case, I have the feeling that MS's statement, or acquiescence in Lino's position, whichever it is, has made the case irretrievable for MS. I can't wait for the next installment! Whatever happens, I get the feeling that this is an important event in the development of practical type law and type ethics. Why it should so have touched a nerve, why it should continue to interest, I have no idea. But it does. It is different from a lot of similar cases in the past, perhaps because of the stature of the typeface, the designer, and the corporations involved; perhaps it is just the world historical mood. Perhaps it is just that there has simply been too much of this. This seems to be the one moment when everyone rose up with one voice to say 'Enough!'

1)

> OED defines theft as ‘The action of a thief; the felonious taking away of the personal

It is okay to speak of "theft" in the Segoe case, provided this term is used metaphorically. But from the legal point of view, the word "theft" should be avoided here, because most states of Europa and also most states of America restrict "theft" to "movable property", for example:

"Whoever intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of the property..." (definition of theft in Minnesota penal code).

According to the above Minnesota statute definition of "theft", one can e.g. steal a CD containing fonts (because CDs are "movable"), but one cannot e.g. steal the design of a font (because the design is "intangible").

2)

> This implies that Adobe has attempted to register Myriad and that the EU has

The forgery Myriad contains the legal declaration "U.S. Patent Des. pending", but it is unknown to me, whether Adobe Inc. registered Myriad in Europe. This would be illegal in Europe, since Myriad is a forgery of Frutiger. Registering a forgery of Frutiger in Europe constitutes the crime of fraud, if the sale of the forgery takes place. In the Segoe case, the crime of fraud did not yet take place, since the sale of this Frutiger forgery (or rather the sale of Windows Vista containing the forgery) does not yet take place in Europe.

Note: The invalidity division stated that "the prior design and the RCD are to be considered identical". The prior design is the original, and the RCD is the forgery. In the Myriad case, the invalidity division would certainly arrive at the same conclusion as in the Segoe case.

3)

> Who, by the way, is Graf von so and so?

"Bosch, Graf von Stosch, Jehle" (note the commas) are the names of lawyers of a law firm in the city of Munich in Germany representing the Microsoft Corporation in patent law matters.

see http://www.bgsj.de

4)

> The judgement states that Linotype’s observation that the Segoe and Frutiger are
> identical is uncontested by Microsoft. That seems to me something less than a
> positive statement by Microsoft: it may simply mean that they did not elect to
> answer this observation at all. Could they choose to address it in an appeal?

It should be emphasized that the invalidity decision is not a "judgement" by a law court, but a decision by a non-judiciary administative office. For those who want to know to what extent the design of fonts may be protected in Europe, I uploaded the full text of the "Council Regulation No 6/2002 of 12 December 2001 on Community designs" as document Segoe4.pdf to my website

see http://www.sanskritweb.net/forgers/index.htm#Monotype

Microsoft of course is permitted to appeal (see the invalidity decision shown in file Segoe1.pdf and see also page 23 of file Segoe4.pdf). But what is more important, should Microsoft not win this appeal, it can institute legal proceedings at a real law court (see page 24 of file Segoe4.pdf). This means that the invalidity decision of the administrative invalidity division is not yet final, although the invalidity decision would become final, if Microsoft did not lodge an appeal.

Nevertheless, despite all these various legal remedies available to Microsoft, in my view it is practically impossible that Microsoft will win for two reasons:

a) From the procedural point of view, the fact that Microsoft did not contest ("As rightfully observed by the Applicant and uncontested by the Holder, the prior design and the RCD are to be considered identical.") has the procedural consequence that any later contestation will not be accepted by a law court on account of the legal principle called "venire contra factum proprium". Therefore to assume "it may simply mean that they did not elect to answer this observation at all" would mean, at least by European procedural law, that the Microsoft lawyers Bosch, Graf von Stosch, Jehle made an unpardonable procedural mistake which is difficult or even impossible to remedy later by another law firm.

b) However, even if Microsoft's belated contestation would be accepted by a law court, such a contestation is useless, because Microsoft cannot to prove that Segoe is *not* identical with Frutiger ("identical" in the sense used by the invalidity division). Therefore, in my view, the Microsoft lawyers Bosch, Graf von Stosch, Jehle did not make a procedural mistake, but instead came to the conclusion that would be futile to contest that Segoe is not a forgery of Frutiger.

5)

The real trouble will start for Microsoft, as so as Microsoft starts selling Windows Vista including the forgery Segoe to customers in Europe. In strict legal parlance, Microsoft does not "sell" Windows in the same way a baker sells pancakes, but Microsoft "grants licences" via EULA contracts, i.e. it "sells" rights. But Microsoft does not own the rights to Segoe, since nobody can legally own the rights to any forgery of Frutiger. And since it constitutes the crime of fraud, if someone "sells" rights which do not exist, any European customer can request that the monopolist Microsoft sells Windows Vista without the forgery Segoe. And this means that Microsoft will have to offer two versions of Windows Vista: One version including the Frutiger forgery Segoe designed for Americans and one version without the Frutiger forgery Segoe designed for Europeans.

Thank you, Uli, for clarifying these matters quite satisfactorily. I am interested in the detail you give as to the possible action against Microsoft for fraud that would appear to lie open to Linotype were Segoe to be sold or licensed in the EU. I had assumed that Linotype would have such an action open to them, since it is incontestable that Microsoft knew in enormous detail about the existence of Frutiger before they decided to forge it, to use the terminology you suggest: (a) MS had already licensed Frutiger for eBooks, not something Microsoft likes to do but in this case it evidently realised the induplicable benefits that would accrue from using Frutiger in eBooks and (b) Microsoft later attempted to license Frutiger Next for Vista, but refused to accept Linotype's terms of a penny (US) per OS unit sold/licensed.

But wouldn't that action technically lie open now, as a consequence of Segoe's exceptionally wide distribution to graphic designers and beta testers? We have to consider that Segoe is not only said by Microsoft to be an essential part of the UI in Vista. It has also been stated to be Microsoft's new corporate identity typeface and has been distributed as such.

What I cannot quite understand is why Microsoft caused so many statements to be published online and elsewhere concerning the 'originality' of Segoe. This apparently was done in the full knowledge that these statements were not true.

This raises the question why such publication was made and when. Some of these publications appeared to be spontaneous 'comments' on blogs such as this one. It would now appear that such apparently spontaneous comments were in reality part of a carefully orchestrated propoganda campaign. I hate to use that politically charged word propoganda, but what else is there? From a practical standpoint, one would also be interested to learn how the parties to the forgery agreed to indemnify themselves.

Sadly, now that the issue has come to litigation, I expect it will be some time before we see any Microsoft employee publishing or posting any (dis)information about Segoe, for obvious legal reasons. Maybe I'm misreading the situation? In that case . . .

Hey guys! The floor is open to you! . . . . .

Bill, I think you've said it all.
With regards to the "old" guys not participating in the ClearType project, perhaps they were invited but share your politics and didn't want to sully themselves.
So if push came to shove, and MS offered to pay you big bicks for a commission, would you accept?

What exactly is sleazy about CT?!

hhp

It should be noted, for the sake of clarity, that Segoe UI was commissioned from Monotype by the Microsoft Typography group, while the ClearType Collection fonts were commissioned, from various designers, by the Advanced Reading Technologies group (who were also responsible for the eBook software and the earlier licensing of Frutiger). These two groups at Microsoft operate independently, with entirely separate budgets and mandates. If there are feathers to be tarred, watch where you are flinging the brush about.

Of course, what corporate lawyers decide is the best strategy to pursue in a patent challenge doesn't necessarily reflect the personal views of people in either the MS Typography or ART groups.

The only thing to add is that I that I think Jeremy Tankard's Corbel, from the CT collection, would make a very nice UI and corporate identity font :)

What exactly is sleazy about CT?!

Do you think that Hermann Zapf or Adrian Frutiger would accept a commission to develop fonts for Microsoft?

Thank you John for (I would judge) going out on a bit of a limb to make this point clear: the Segoe story has nothing (as far as I know or can imagine) to do with the ClearType story. It is important not to get the points confused. If Nick can get the two issues confused, anyone can get them confused, and they should not be confused. The fault may be mine, perhaps for having been unable to resist a cautious if slightly Menckenian dig (which I hope will have a brought a reluctant smile) at the CT project that I thought was so vague it would sail over everyone's head. My touch is clumsier than I thought and the remark should not have been made.

Nick, you raise some good points which I would like to address. You suggest that the old guys may have been invited to participate in the CT project but declined on political grounds. That is not the case, I happen to know. None of them was asked. Clearly, there was a desire to bring some new and younger faces on the scene. That is inherently laudable, extremely so. In this case, there were overriding practical reasons why it should not have been done, or not have been done to quite the extent it was done, but that has all been gone into on this forum and presumably forgotten. I wish it were quite off topic but it isn't. To continue with your train of speculation, since the 'Four Kings' weren't asked, we can't know how they would have responded. But I think I can safely guess that they would have accepted, and for two reasons. The first is that almost no type designer can afford to turn down a commission, and to go further, there is scarcely, I think, any artist or craftsman who is not eager to make the Faustian compact, if only he is given the chance.

The second reason is that the designer/artist/craftsman who is dealing with the devil always thinks he can do something to correct the devil's ill deeds. The latter of these factors operated for Zapf when he consented to design Linotype Palatino for Microsoft. I don't think he needs the money, but I do know that he ardently hoped, and was led to believe, that 'Book Antiqua' - as great an affront to him as Segoe is to Frutiger - would disappear from the Microsoft OS. And it did. But not from Microsoft apps. Apparently, Book Antiqua is too entrenched to enjoy the death that Zapf was led to expect would befall it when he consented to build Linotype Palatino for Microsoft. I believe that the deed could have been done with some sort of substitution tables and perhaps some explanatory information, but Microsoft, undoubtedly for what it saw as overwhelming practical reasons, chose not to go that way. At least as I understand what transpired. Furthermore, though Book Antiqua was designed to have metrics identical to Postscript 35 Palatino, what if the new Linotype Palatino metrics were not identical? And wouldn't that have been an unfair burden to place on the designer?

'So if push came to shove, and MS offered to pay you big bicks for a commission, would you accept?'

I would like to say 'indubitably yes', but I am so unaccountable, there's no telling what I would do. And I very much doubt I will ever have the opportunity to find out.

What I would like to say is that your remarks connect with something that has been going on in my head over the last few days, and that is that I constantly find myself looking for an easy way to solve some type problem and get something out there that is good and doesn't take much effort. And I am constantly finding that every time I try to do this, it doesn't work. But I can't stop myself from looking for an easy way out. You would think, after all this time, I would have learnt my lesson. And I am just thinking in the realm of pretty ordinary text type. I can imagine that a charming, daffy, and quite original display typeface like your Fontesque might have sprung out pretty quickly and effortlessly. On the other hand, it would not surprise me if a lot of long and grueling work went into it. Which way was it for you, Nick?

Finally, and getting further off topic, John, I would not be surprised if Corbel would make a great UI and corporate font, but you really ought to make an effort to show it better than you have done in the past! Speaking of which, we are very busy here defending the Frutiger typeface, as it is right for us to do. But I quite agree that almost anything else would have been a better choice for Microsoft. Especially given Apple's extensive use of Myriad. Isn't it amazing how exceptionally staid and rigid technology companies are in their corporate ID schemata? I sometimes find myself thinking that I would be happy never to see Frutiger again. It needs a rest. Yet on the other hand, it has had a rest. Here we are seeing its second period of triumph. And maybe the reason both Apple and Microsoft are using Frutiger so extensively is that the matter is, somehow, not really in their control? That Frutiger is, somehow, the typographic language such a company has to speak at this point in time? The more I learn about Frutiger, the more powerful it seems.

Be that as it may, the ethical issue does not change. It doesn't matter if you like Frutiger or dislike Frutiger. It doesn't matter if you want to use it, or don't want to use it, or are compelled by inscrutable forces to use just this Weltbild/design against your will: if you do actually use Frutiger, you must pay Linotype, its owner, for it.

> Do you think that Hermann Zapf or Adrian Frutiger would
> accept a commission to develop fonts for Microsoft?

Oh, so you're saying MS as a whole is terminally sleazy.

Nevermind that for years they've been contributing more to quality
typography among the masses than any other large corporation.

So Nick, is it about culture for you, or is it really about money?

> a desire to bring some new and younger faces on the scene.

Which makes it very ironic that Nick's trademark forceful endorsement for the contemporary versus the established precedent conveniently doesn't apply when it comes to a party that he feels hurts his bottom line (essentially by releasing better fonts).

"So if push came to shove, and MS offered to pay you big bicks for a commission, would you accept?"

You would, Nick.

> The more I learn about Frutiger, the more powerful it seems.

Not to me. The fact that Apple and MS use it
simply means it has a "staid" corporate voice.

> if you do actually use Frutiger, you must pay Linotype, its owner, for it.

But only because Linotype is a reasonable entity. Otherwise,
the ethical and legal paths diverge, and I for one prefer
following the former (as much as I can manage).

hhp

> Thank you, Uli, for clarifying these matters quite satisfactorily.
> I am interested in the detail you give as to the possible action
> against Microsoft for fraud that would appear to lie open to
> Linotype were Segoe to be sold or licensed in the EU.

As already stated by me, the real trouble does not start now, but will start in the near future, e.g. by the end of 2006 or later, when Windows Vista is sold by Microsoft in Europe. There are three different legal scenarios, namely these:

1) Segoe as ordinary fraud crime

This legal scenario cannot be specified presently, because it is not yet known, whether e.g. Ascender will sell the Frutiger forgery Segoe in the near or far future.

2) Segoe as "branding" case

This legal situation already exists today, because Microsoft and its advertising and promotion agencies already today use Segoe as "branding" font for typesetting of Microsoft advertisements etc. See the publicity PDF files at the www.Microsoft.com website.

In the Segoe "branding" case, the legal situation is completely identical to the legal situation in the United Parcel Service case (UPS Sans vs. FF Dax alias Barmen). This latter case has already been described by me in a 16-page German-language document:

http://www.sanskritweb.net/forgers/barmen.pdf

Whatever was said in this document concerning the UPS Sans "branding" case also applies to the Segoe "branding" case so that there is no need to repeat here what was said there.

3) Segoe as EC anti-trust case

The legal scenario for this case cannot be specified presently, because everything depends on whether or not Microsoft will include Segoe into the Windows Vista version distributed in future in the European Community.

Microsoft as a monopolist has repeatedly ignored the European anti-trust laws, notably in the "500 million Euro fine" case two years ago:

http://www.dw-world.de/dw/article/0,2144,1149791,00.html

For the current EU vs. Microsoft situation see the official website here

http://www.eurunion.org/News/press/2006/20060016.htm

From this official website, it becomes apparent that the European Anti-Trust Commission does not accept the illegal "bundling" behaviour of Microsoft concerning the Windows operating system components.

Let us assume, Microsoft will sell Windows Vista "bundling" the Frutiger forgery Segoe in Europe, then it is likely that the monopolist Microsoft will be forced by the European Commission to "unbundle" Windows Vista, i.e. to sell it without this forgery, because nobody in Europe can be expected to accept forged fonts as part of an operating system, in the same way as nobody can be expected to accept forged bank notes as part of the monthly salary.

Is Segoe named after Tom Rickner's street?

John, sight unseen, but market well know, no one in thier right corporate mind would choose a MS CT font for a Corp logo or ID, Should They?!

Bill, I'm not at all hungry for anymore monolithic 1-style-fits-all UI faces.

This whole issue seems to be a good example of the old saying that "all corruption empowers."

Oh, so you’re saying MS as a whole is terminally sleazy.

You're putting words in my mouth. Remember, you prefer to argue with a straw dog rather than the real thing.

a party that he feels hurts his bottom line (essentially by releasing better fonts)

Learn to distinguish principle from self-interest. I have an issue with font bundling and plagiarism, but that has nothing to do with my bottom line (which is just fine thanks), or the quality of the fonts invovled.

the established precedent conveniently doesn’t apply

So what you're saying is it's OK for Microsoft to play hardball with other people's intellectual property, as long as some of their stuff is original?

In general, the font business' attitude towards intellectual property doesn't earn my respect, so I think it's kind of pointless to get on a high horse, when our own house isn't in order, as evidenced by the behaviour of our major players.

You would, Nick.

In your dreams, Hrant.

no one in thier right corporate mind would choose a MS CT font for a Corp logo or ID

Wearing the same colour shirt as everyone else is a quick way to become part of the establishment. Or as the saying goes, the nail that stands out is hammered down.

Nick, you were implying that Zapf and Frutiger
would refuse to work with MS. If that does not
mean there's something inherently wrong with
MS (I mean in terms of font development) then
feel free to explain.

And please don't deploy an "I was jesting" escape clause this time.

> Learn to distinguish principle from self-interest.

Stop spinning.
Aren't you supposed to be supporting the young'ns as opposed to Bill's 4?
My point is in general you would be, except you feel MS hurts
your business - but that connection is opportunistic of course.

> So what you’re saying is it’s OK for Microsoft to play hardball
> with other people’s intellectual property, as long as some of
> their stuff is original?

1) Pretty much, but it would have to be most (and it is) not just some.
2) Not original, but useful. Making originality central is too artsy.

> I think it’s kind of pointless to get on a high horse

?!

> In your dreams, Hrant.

Actually, in yours! :-)
An average of once a month I reckon.

hhp

Nick, you were implying that Zapf and Frutiger would refuse to work with MS

The way I heard it, Hermann Zapf quit ATypI because of Book Antiqua, the MS face that looks like Palatino. Adrian Frutiger was miffed at Adobe for Myriad's resemblance to his eponymous face. There's two type designers that would likely decline an invitation to work for MS, don't you think? Maybe there are others who, out of sympathy, or on general principle, would also not make a good fit with MS -- perhaps the four Bill mentioned, certainly myself.

Aren’t you supposed to be supporting the young’ns as opposed to Bill’s 4

I support originality and contemporary type designs, regardless of the designer's age.

you feel MS hurts your business

My business has never been better, and I'm looking forward to expanding into the CE, Greek and Cyrillic font market -- which is something that MS is opening up. So why would I think MS is hurting my business?

> There’s two type designers that would likely decline
> an invitation to work for MS, don’t you think?

Zapf: Did you not read what Bill wrote above?
Frutiger: Sadly, he has a "better" reason not to accept.

And what does that have anything to do with CT?!
(See above. And you thought you could distract me...)

> Maybe there are others who, out of sympathy, or on
> general principle, would also not make a good fit with
> MS — perhaps the four Bill mentioned, certainly myself.

Wrong on both counts.

On the other hand, at this rate you're well
on the path of a self-fulfilling prophecy...

> I support originality and contemporary type
> designs, regardless of the designer’s age.

Super.
Now compare the œuvre of the guys who worked on CT versus Bill's 4.

> So why would I think MS is hurting my business?

No idea. You've only brought it up like a million times.
(I feel an "I was jesting" coagulating...)

hhp

from David

'Is Segoe named after Tom Rickner’s street?'

No, that is a myth.

'John, sight unseen, but market well know, no one in thier right corporate mind would choose a MS CT font for a Corp logo or ID, Should They?!'

Is what you're really saying here that a typeface is always tarred with its intention? I'm expressing it badly, but I get the feeling you're trying to make an important point about the depth of study that should (must) go into a successful corporate ID process.

'Bill, I’m not at all hungry for anymore monolithic 1-style-fits-all UI faces.'

OK. After - how many is it now? literally half a million glyphs? after so many, you're entitled to say, Enough! You earned the right. But would you also decline the opportunity to design a corporate ID for MS? Wouldn't that be an interesting enough challenge? On the other hand, it would be a very muddy issue if the brief were to devise both a corporate ID and a UI. That seems to me insane, something only either a clueless executive could dream up - - or is it in reality a brilliant requirement?

'This whole issue seems to be a good example of the old saying that “all corruption empowers.”'

I blush to say I never heard that one, but I really like it.

By the way, to set the record straight. Segoe is named after Bill Davis's great-great-grandmother, Amalie von und zu Segoe, who was the cousin of Gräfin Sophie zu [but not von] Segoe, familiar to type historians for her role in preserving the Auerbach matrices in the cellar of her manse during the Franco-Prussian war. This information is well known to anyone who has perused the pages of the Almanach de Thypa of 1894. There is a copy at Yale.

Back to the topic, I really like the way Nick is trying to express, through the static, the fundamental point that type is intellectual property to be respected. When put this way, it seems so utterly shocking that it's the American habit not to respect it. I like too Uli's expression of the old world attitude: 'nobody in Europe can be expected to accept forged fonts as part of an operating system, in the same way as nobody can be expected to accept forged bank notes as part of the monthly salary.'

When you think about it, there is nothing more painful than for a type designer to be told, after years of work on something - - 'this is not yours, it is mine'. It is an issue that must be addressed. And I think we are, slowly, seeing it be addressed. The attention Matthew Carter got in the New Yorker is one example. The attention that Segoe is getting is another. Something is shifting in the wind.

> would you also decline the opportunity to design a corporate ID for MS?

Sort of pre-emptively, sorry:
Wasn't it FB that worked with Brody on Macromedia's ID?
You know, the guys whose software not only ignores embedding
restrictions but actually [internally] converts the outlines?
Was that unethical of FB? Well of course friggin' not.

> The attention Matthew Carter got in the New Yorker is one example.

Please elaborate.

hhp

Zapf: Did you not read what Bill wrote above?

No, but I have now.
It's sad what he says, about how people end up making the "deal with the devil".

You’ve only brought it up like a million times.

And you still don't get it.

Wrong on both counts.

On the first, apparently, but somehow I don't see myself being approached by Microsoft with a design commission, or accepting the terms.

Which way was it for you, Nick?

The original Fontesque sketches were done in a couple of minutes, but it was a lot of manual work scanning and tracing, then giving the fonts typographic colour. My first foray in Fontographer, learning the software at the same time. And it has a proper italic, -- I recall days spent trying to draw the italic "g" before ending up basing it on transformations of the roman g. That was 1993, a lot of type designers' first digital fonts were "informal". A few years later, techno, that was way less work.

Bill:Nick, you raise some good points which I would like to address. You suggest that the old guys may have been invited to participate in the CT project but declined on political grounds. That is not the case, I happen to know. None of them was asked ... To continue with your train of speculation, since the ‘Four Kings’ weren’t asked, we can’t know how they would have responded.

By 'Four Kings' I presume you mean the quadrumvirate you referred to above: Unger, Carter, Berlow, Stone. Don't forget that Matthew was very much involved in the CT project, designing the western companion forms to the Meiryo typeface. This is an impressive example of the importance of quite subtle changes to an existing design (Verdana) in harmonising with another script, and bears study, as I found when I prepared some comparison visuals for Margaret Re to use in her retrospective lecture on Matthew's work at the ATypI conference last year.

David: John, sight unseen, but market well know, no one in thier right corporate mind would choose a MS CT font for a Corp logo or ID, Should They?!

Not in its CT-optimised form, perhaps, but I was thinking in terms of adjustment of the design to appropriate weight and proportion. But this relates to the already odd situation of Segoe doing double-duty as a UI and corporate ID face.

I've been using Corbel as a UI font for over a year, and despite not being designed specifically for that purpose it performs very well. It wouldn't take much to optimise the design for such a purpose, and I doubt if there would be much to recommend Segoe UI over it.

Would Corbel do as well as Segoe as a corporate branding font (and bearing in mind that this is the whole of the question, not whether Segoe is a good choice itself)? It at least has the benefit of not being a Frutiger clone, and being well outside the similar genre employed by Apple.

Hrant has drawn to my attention that the following paragraph may convey a message very different from what I meant:

'When you think about it, there is nothing more painful than for a type designer to be told, after years of work on something - - ‘this is not yours, it is mine’. It is an issue that must be addressed. And I think we are, slowly, seeing it be addressed. The attention Matthew Carter got in the New Yorker is one example. The attention that Segoe is getting is another. Something is shifting in the wind.'

What I meant is that one of the good things that is happening today is the positive attention that MC got in the New Yorker profile. Equally valuable, I think, is the negative attention that the Segoe forgery (to use Uli's uncomfortable but apparently absolutely accurate terminology) is getting. Both increase the public's awareness that type is valuable intellectual property which a few people really do try to make a living from. It is not something that magically appears from nothing, as a gift from history. Probably the type industry has been guilty of an enormous amount of negligence in failing to educate the public about the difficulties of making digital type today, about the enormous strides that have been made, and more importantly, about the enormous strides the remain to be made. It's elementary marketing psychology: once you give people the feeling they ought to have something they don't have or that doesn't yet exist but may in the future, they want it. You're educating them into an expectation. From this point of view - basic customer education - the marketing of type in the US over the past twenty years has been unbearably inept.

Anyway, Hrant feels that I was implying that there was something negative in MC's profile. Of course there isn't and I don't want anyone to think I was hinting at that. I think we are all unreservedly thrilled that Carter is getting this well-deserved attention.

John, of course I knew quite well that the redesign of the Meiryo variant of Verdana was part of CT2 but I didn't count it as it was after all just a redesign of perhaps the most well-known constituent of CT1. However, you are right to remind people of this for the record. I think we would all be interested to hear more from you on the differences you speak of and would be grateful to have you post something about it, if you have the energy to start a new thread.

I have one more off-topic question for Nick. OK. Fontesque was an easy birth and a slightly more difficult upbringing, but not too bad. But you were already a fairly experienced graphic artist at that point, weren't you? My last question then, would be, to what extent did years of previous training and work make it possible for it all to come out relatively fluently? Or was it just a kind of effortless gift?

Oh and finally, John, I don't think that it's very rigorous to argue that Corbel would suit MS as a corporate ID font on the grounds that at the very least, it isn't a Frutiger clone. I would have thought that a corporate ID font should be designed or chosen with a really thoughtful insight into what a company is and what it wants to convey. But then, in a perverse way, Segoe does penetrate to the historical soul of MS, doesn't it? Didn't Microsoft start out roughly as follows? IBM needed an OS for the 8088-based PC. So MS bought Seattle Computer's clone of Digital Research's CP/M (the standard for 8080-based pre-IBM PCs) for $25,000. Of course, as is well known, the only reason DR lost out to MS was that DR's founder kept IBM's executives waiting for so many hours they were literally forced into MS's arms . . . . Anyway, buying a clone is nothing new for MS. On the other hand, perhaps buying a forgery is? It will be interesting to see how this all pans out.

Microsoft seems to have some real difficulty dealing with the EU. Indeed, MS's difficulty in grasping the EU rather reminds me of IBM's difficulty in grasping Microsoft. IBM simply didn't have a clue, and one really must give MS credit for screwing those clueless suits again and again and again. Now, with the EU, you get the feeling that it's MS which has turned into the clueless suits. Uli keeps on harping on MS's status as a monopolist. And that of course is what IBM was so often accused of before Microsoft defanged it. Let us please remember that Microsoft deserves the credit for this historic deed!

Of course it is unhealthy and ultimately deadly to progress for any company to enjoy a monopoly. But there is also a simple reality here: most of the world does not want to live with 30 different OSs, 3000 incompatible productivity apps with incompatible formats, and more incompatible documents than anyone could count this little world over.

Apologies for this overlong rant. I must really not want to work on my font this week.

to what extent did years of previous training and work make it possible for it all to come out relatively fluently?

I was originally a fine artist, though more of a print-maker than a painter. I'm self-taught as a typographer (no training), although I did take a course in calligraphy. I worked as an art director from 1977, doing marker comps of headline type for hours every day until the Mac obviated that (for me) in 1988, so type drawing fluency was well practised. Also by the time I did Fontesque, I had been using Illustrator for 5 years, so I was familiar with BCPs. Having said that, I think a lot of type designers have a "natural" casual script typeface within themself -- I was fortunate that mine came out in 1994.

Oh and finally, John, I don’t think that it’s very rigorous to argue that Corbel would suit MS as a corporate ID font on the grounds that at the very least, it isn’t a Frutiger clone. I would have thought that a corporate ID font should be designed or chosen with a really thoughtful insight into what a company is and what it wants to convey.

I was making the comment in the context of MS already using the same typeface for a UI font and a corporate marketing font. My point was that Corbel, with appropriate tweaking, could perform either role as well as or better than Segoe performs them. This is why I said that was the whole of the question in terms of comparing the two faces. Obviously there is another question about the appropriateness of either as a corporate branding type for Microsoft.

Perhaps I should have limited my initial comment to the worthiness of Corbel as a UI font, which is actually the more interesting case. As I say, I've been using it as a UI font for many months, and think it works very well (mind you, my screen has a higher than average resolution).

> my screen has a higher than average resolution

Way.
And that dampens two of CT's three main faults.

hhp

I compared some old and new font files of the Frutiger forgery Segoe, some with faked Monotype "copyright" notices and some with faked Microsoft "copyright" notices.

The "creation dates" in the font header are apparently faked too, and in some files intentionally erased ("null" entry, "before" 1970). The faked creation dates range from 1997 through 2005.

In case that creation year "1997" is not a fake, then Monotype at first made a forgery of the old Frutiger, and later, after publication of Frutiger Next, either Monotype or Microsoft made again a font forgery, but now of the new Frutiger.

Uli, creation dates are notoriously unreliable indicators. They vary in accuracy depending on both the tool used and the attention of the manufacturer. And what is the creation date? The date on which the font source file was first created? The date on which the first shipping version was produced? People interpret it differently, and some people pretty much ignore it. The existence of fonts with older creation dates does not indicate much at all. I've seen fonts made last year that claim to have been made in 1969, because they were made with a tool that had a default setting for 1969 that needed to be changed by the font developer.

However, in reference to the pre-Microsoft history of Segoe, this comment from Si Daniels at MST is worth rereading:

'The original Segoe fonts were not created for or by Microsoft. It was an existing Monotype design which we licensed and extensively extended and customized to meet the requirements of different processes, apps and devices.'

By the wyay, forgery seems an inappropriate term to this English speaker, because it usually implies something fake passed off as something real, i.e. something not Frutiger passed off as Frutiger. In this case, we have something like Frutiger claimed as not Frutiger. If an intentional copy, it would be an example of plagiarism not forgery.

By the way, to set the record straight. Segoe is named after Bill Davis’s great-great-grandmother, Amalie von und zu Segoe, who was the cousin of Gräfin Sophie zu [but not von] Segoe, familiar to type historians for her role in preserving the Auerbach matrices in the cellar of her manse during the Franco-Prussian war. This information is well known to anyone who has perused the pages of the Almanach de Thypa of 1894. There is a copy at Yale.

That's hilarious, Bill. I think you should write a history of German typography in this manner.

Segoe is actually named, indirectly, for Ladislas Segoe (1894-1983), an important figure in mid-century American urban planning who largely defined the role of urban planner as it is practised today (see. 'Ladislas Segoe and the Emergence of the Professional Planning Consultant' in the Journal Of Planning History, 2003, VOL 2; PART 1, pages 47-78). He is primarily associated with the city of Cincinatti, but also contributed to the planning of Madison Wisconsin, where there is indeed a road named after him on which Tom Rickner may or may not live.

> By the wyay, forgery seems an inappropriate term to this English speaker,
> because it usually implies something fake passed off as something real,
> i.e. something not Frutiger passed off as Frutiger. In this case, we have
> something like Frutiger claimed as not Frutiger. If an intentional copy,
> it would be an example of plagiarism not forgery.

Thank you for your explanations.

The term "forgery" as it is use by me is a legal term in (German) law books defined as follows:

"forgery" = "a copy made in order to deceive"

- As a first step, a copy (or imitation or replica or clone) is made.
- As a second step, an act of deception (or of fraud) takes place.

Your description "we have something like Frutiger claimed as not Frutiger" exactly fits my definition:

- "something like Frutiger" is the "copy" of Frutiger.
- "claimed as not Frutiger" is the "deception".

Today, I perused the German book "Schriftstatistik" (Typeface Statistics) by Peter Karow published in Hamburg in 1992. On page 25 of his book, Peter Karow publicly declared that he made a copy (or clone or reproduction) of the font "Frutiger" and labeled it "Frutus". Thereafter I looked up the 1000-page manual to Peter Karow's "TypeWorks" collection, wherein he publicly declared in the preface that his copy or his clone "Frutus" is the font "Frutiger". Therefore no deception took place, because here we do not have "something like Frutiger claimed as not Frutiger", but on the contrary Peter Karow claimed that "Frutus" is "Frutiger", i.e. a copy or clone of "Frutiger". Therefore, "Frutus" is not a forgery, because Karow did not deceive anybody concerning his copy or clone "Frutus". We may describe Peter Karow as a "copyist" or as a "cloner", but not as a "forger".

Now let us compare Peter Karow to the forgers at Monotype and Microsoft. Did Steve Matteson at Monotype or Simon Daniels at Microsoft publicly and frankly declare that "Segoe" is a copy or a clone of "Frutiger"? No, they did not. On the contrary, they deceived Windows users concerning Segoe. For instance, the font forger Steve Matteson declares at his website

http://www.ascendercorp.com/portfolio_custom.html

the following: "Segoe is Microsoft's new branding typeface... Steve Matteson started this project...". No mention of Frutiger, see? That is why "Segoe" is a forgery.

> “a copy made in order to deceive”

But it wasn't. It was in order to save money.

hhp

If Quark can change its logo, maybe Microsoft could follow up on John's idea, ditch Segoe, and switch to its own Corbel.

If Quark can change its logo, maybe Microsoft could follow up on John's idea, ditch Segoe, and switch to its own Corbel.

The term “forgery” as it is use by me is a legal term in (German) law books defined as follows: “forgery” = “a copy made in order to deceive”

But you are translating this German legal definition into English and using the term in an English-language discussion in an English-language forum, and I think in this context the normal English usage of the term has to be acknowledged. Art or literary forgery provides the typical model: a copy (or work in a recognisable style) passed off as an original of the copied artist. Copying something and passing it off as your own invention is not usually called forgery: it is called plagiarism.

Thank you John for your remarks on the Almanach. I wonder if Uli caught the rather cheesy reference to Faust? Albert de Frayne, a Monegasque chess player of great talent and undeserved obscurity who lurks here but sometimes corresponds with me privately, was completely deceived.

Now to our vocabulary:

'Copying something and passing it off as your own invention is not usually called forgery: it is called plagiarism.'

Which of course is not often considered an indictable offense, though it is frightfully bad manners. Good try, John! (In England, Uli, plagiarists are sometimes sent to Coventry, and if you know that expression, now verging on the archaic, your English is superb. I imagine most reasonably well-educated Americans are unfamiliar with it.)

However, John, I think you are spinning the English definition too far away from OED: The making of a thing in fraudulent imitation of something; also, esp. the forging, counterfeiting, or falsifying of a document.

The making of a thing in fraudulent imitation of something - that seems just about to fit the case of Segoe, and it is the primary sense of the word; the sense you and I use most comfortably is secondary though not secondary enough to be considered distinct. I admit that I too was uncomfortable with 'forgery' at first. But I now accept that was only because I didn't know what the word meant. It's very trying for a competent English writer to be corrected on a simple word usage by a German, but one sometimes has to submit to these indignities with as much grace as one can summon.

Yes, we all mostly know a popular, common sense of the word, which we often apply to paintings and documents. But that is not the exclusive sense. The larger sense in OED seems to fit this crime perfectly, and I can't think of a better term in English.

'fraudulent imitation' is the key basic sense we have to grasp here.

What does fraud mean? Again, in OED, the key sense is 'Criminal deception; the using of false representations to obtain an unjust advantage or to injure the rights or interests of another.'

That is absolutely on target here. Microsoft falsely represented to the EU that Segoe was an original typeface. It was indisputably their intention to injure the rights and interests of Linotype and Frutiger by doing so. I can't see any way round that.

'Imitate' is too richly defined to quote here, but some key extracts are, 'to mimic, counterfeit', 'to copy, reproduce'.

So: I accept 'fraudulent imitation' as an exact description of Segoe.

In that case, why not accept 'forgery' since that is exactly what 'fraudulent imitation' means?

That fraud was intended, and achieved here, cannot I think be gainsaid, can it?

Over the weekend I'm going to try and run the whole question by a couple of senior American federal judges I know; it will be interesting to see if they can provide any additional illumination. That's always supposing I can get them to understand what a digital typeface actually is. They are both getting on in years. But one is a real expert in derivative artworks, so his opinion should be worth having if he will give it.

Nick, thanks for your further comments about Fontesque, which I think is one of the finest of all fantasy fonts, as one might call them. What you say confirms my feeling that it had to have come out of some substantial backlog of skill and experience. I apparently fibbed, by the way, when I said somewhere that I had written about it in the mid-90s. I looked through all my files and saw that though it was illustrated and captioned in a story I did on FontFonts for Publish or DTPJournal, or something like that, there wasn't enough room to actually say anything about it. Of course the story could have been changed at some point, and I don't have a print copy anymore. Oh let me stop blathering, nothing I wrote about fonts in the mid-90s is worth the bandwidth even at today's prices.

In that case, why not accept ‘forgery’ since that is exactly what ‘fraudulent imitation’ means?

Again, the usual model of fraudulent imitation in a case of forgery is the passing off of the imitation as the original that it imitates, and that is what most people will think of when they hear the word forgery. In this case, the apparent imitation is being passed off as not the original that it imitates, for which we have the very serviceable term plagiarism. Plagiarism is not in itself an indictable offence, as you note, but individual cases of plagiarism may certainly constitute fraud.

Both Linotype and Microsoft are my clients, so I'm not inspired to get into a discussion about intentions. Sorry. I have been frank all along, though, to anyone who cared to ask, that I believe Segoe to be too close to Frutiger. Even cutting Monotype the maximum slack and imagining that they could have produced this design without deliberately referencing Frutiger and Frutiger Next, the result is unacceptably close. Stupidly so, in fact, and I'm amazed anyone thought it was a good idea to license it. Even with the best of intentions to produce a new design in this style, I think that this subgenre of humanist sans serifs is too narrow a field to support much more than already exists without the whiff of plagiarism: between them, Frutiger, Myriad and Stone Sans have pretty much covered all the bases.

> Copying something and passing it off as your own invention
> is not usually called forgery: it is called plagiarism.

Since my "Font Forging Industry" website (http://www.sanskritweb.net/forgers) is visited daily by hundreds of visitors from all over the world, I selected the very broad generic legal term "forgery", because I could not find a better generic legal term which could be understood by visitors from Netherlands, Brazil, Italy, Canada, Romania etc. (just to quote a few countries from my today's website statistics), who live in different countries with different laws. Of course, in my German-language documents on the "Font Forging Industry", I use other very special German legal terms, but these much more specialized German legal terms cannot be generalized for all other countries.

The term "plagiarism" (in German and in French: "Plagiat") suggested by Mr. Hudson has the disadvantage that it is a term, which does not occur in the laws of the countries which I know. For instance, "plagiarism" does not occur in German laws, nor does "plagiarism" occur in the American nor in the British nor in the French copyright act. For instance, when you download the entire "Copyright Law of the United States" contained in the PDF file

http://www.copyright.gov/title17/circ92.pdf

and when you, after downloading, search via Adobe Acrobat for the term "plagiarism" in this PDF file, you will not find any occurrence of this term "plagiarism". I also checked the British "Copyright, Designs and Patents Act" and also checked the French copyright code, and as regards Germany, I can say with conviction that the term "Plagiat" is never used in any of the many German civil and penal laws.

The term "plagiarism" is a literary term, which may be used in the New York Times Literary Supplement, but it is not a legal term, because it does not occur in American laws and hence does not have a legal definition.

Well, aren't we glad Typophile isn't a court of law!

> http://www.sanskritweb.net/forgers

So what's that word in "Barmen - Sari - Dax - UPS Sans -Wer plagiierte was?"

> None of the notorious forgers ever dared to sue me, because I describe the facts.

It might actually have more to do with you not being in the US.

hhp

1)

> So what’s that word in “Barmen - Sari - Dax - UPS Sans -Wer plagiierte was?”

I explained on page 8 of above file www.sanskritweb.net/forgers/barmen.pdf

"Abschließend sei bemerkt, daß ich auf eine rechtliche Beurteilung des Falls verzichtet habe, weil ich den Wortlaut des Vergleichs nicht kenne. Die Begriffe "Plagiat" und "Selbstplagiat" habe ich nur im metaphorischen Sinne verwendet, denn erstens ist dem deutschen Urheberrechtsgesetz der Begriff des Plagiats fremd, und zweitens sind Fonts ohnehin nicht urheberrechtlich geschützt..."

2)

> It might actually have more to do with you not being in the US.

Most companies at least have subsidiaries in Germany (Adobe, Microsoft, UPS etc.) or even have their headquarters in Germany (e.g. Linotype, FontShop etc.). An exception for example is Monotype which no longer exists in Germany due to bankruptcy.

John:
"Not in its CT-optimised form, perhaps, but I was thinking in terms of adjustment of the design to appropriate weight and proportion."
Can that be done? Are there variations of these fonts? or are you talking about the original designers making variations and licensing them to other Corporations? Is that possible with the CT fonts or the Segoe font?

The other thing I'd like to say without intending to be obnoxious, judgemental or demeaning, and that is that at some point a type design becomes so bland, vanilla, average-looking, and otherwise completely undistinguished, that there are plenty of other fonts that it is going to look a lot like for the simple reason that so many people want this kind of disappearing type. There is no space to invent because invention is not important.

What's any law gonna do about it?

> “Abschließend sei bemerkt ...

English? (Or French, Spanish, Arabic or Armenian?)

> Most companies at least have subsidiaries

You missed my point.
Over here you don't need to break a law
to get sued, you just need to be poorer.

> What’s any law gonna do about it?

For that you'd need a king.

hhp

Well, John, certainly the two OED2 definitions of plagiarism,

1. ... the wrongful appropriation or purloining, and publication as one’s own, of the ideas, or the expression of the ideas (literary, artistic, musical, mechanical, etc.) of another.

and

2. A purloined idea, design, passage, or work.

also fit the bill nicely.

So having exhausted our literary and amateur legal resources, I think it is time for some expert legal opinion. I realise that by now you probably consider yourself an expert in the field, but lawyers, especially judges, often hold rather shockingly different opinions from the rest of us.

You are not exaggerating when you say that you have always been disclosive about the Segoe matter, going back about two years to when the story first broke. Recklessly so, was the opinion in high places. I find that interesting.

David: or are you talking about the original designers making variations and licensing them to other Corporations? Is that possible with the CT fonts or the Segoe font?

The Segoe font is Monotype's and I don't know what licensing arrangement they have with Microsoft.

The CT fonts belong to Microsoft, so no I was not talking about the original designers licensing variations of these to other corportations. I was talking about Microsoft commissioning a variation of e.g. Corbel optimised for additional functions such as a being UI font or for use in corporate branding. They own the original font outright, so can do with it what they like.

I realise that by now you probably consider yourself an expert in the field, but lawyers, especially judges, often hold rather shockingly different opinions from the rest of us.

I certainly don't consider myself an expert in any kind of law. I generally avoid legal discussions precisely because I don't think one can make reliable statements, for the reasons you cite. This is part of the reason why I queried the term forgery. Uli explains that he has deliberately chosen this word because of its legal meaning in various countries; that is, he has sought out a word with legal implications to make, I presume, the point that he considers the actions of various companies to be illegal. That's his prerogative, but to me it looks like begging the question: by describing the actions as forgery, he is making a legal judgement on the action and, as you point out, matters of law should be argued by lawyers and decided by judges. Uli chooses a word because it has legal implications, whereas I choose a word that, as you note from the OED, 'fits the bill nicely', but does not necessarily have legal implications. A difference in personality, I suspect, as much as anything else.

A legal process is already underway regarding Segoe, and I think Linotype are right to take a stand on this. Over the years, Linotype seems to have been the victim of more acts of font plagiarism than any other foundry, and certainly of more blatant and financially significant plagiarism, with Bitstream and Monotype being the worst culprits. Microsoft's primary fault in all this is trusting Monotype to provide original designs. I think the trouble is that by the time these kind of things come to the attention of people who can address them, a massive software product like Vista is in code lock down, with UI font dependencies embedded in the system. At that stage, the cost of removing a font becomes prohibitively high.

The obvious solution is to do a better job on examining the originality and provenance of fonts at the licensing stage. This means having, for instance, a panel of knowledgeable and experienced people who can review proposed typefaces and advise if they are uncomfortably close to other designs.

Recklessly so, was the opinion in high places.

I wasn't aware that there were any high places left. :)

'The obvious solution is to do a better job on examining the originality and provenance of fonts at the licensing stage. This means having, for instance, a panel of knowledgeable and experienced people who can review proposed typefaces and advise if they are uncomfortably close to other designs.'

Something like the Morisawa?

Something like the Morisawa?

Er, no, it would have to be a group of people who would recognise a Lexicon clone. :)

Morisawa is a competition, and the judging of a large number of entries takes place in a short period of time, in conditions of at least semi-secrecy regarding the identity of the submitted designs and their creators. What I'm talking about is a process of examination of individual designs that a company is considering licensing, with reference to outside experts as necessary, capable of judging whether a design is sufficiently original or otherwise kosher (e.g. appropriately licensed, public domain, etc.) It's a process that could take several days, involving research, detailed comparisons, and submission of a written report and recommendations.

I'm very much of the opinion that one of the ways to stop people doing the wrong thing is to make it easier for them to do the right thing. If the problem is a software company licensing typeface designs that are too similar to existing designs from other parties -- regardless of the intent or deliberativeness -- then I want to ask what process would prevent that from happening.

I have stated here and elsewhere in the past how much I dislike the Segoe project — I do consider it a knock-off of Frutiger, unlike Myriad, which I think really is sufficiently different, especially in the bolder styles. What I find amazing though is that when we talk about Segoe UI, we talk about a font that will be shown in screen sizes of no more than 20 ppm tops (typically even much less). Can one really argue that at those small sizes, a typeface is a knock-off of something else? Just wondering...

A.

I wonder who made the earliest Frutiger forgeries.

My guess for the photo-composition era is the forgery "Frontiera" made by the bankrupt Compugraphic corporation, but I do not know in which year "CG Frontiera" was published.

My guess for the digital era is the forgery "Quebec" by Walter Florenz Brendel, who is said to have been one of the first users of the Ikarus system in the 1970s. Brendel, who died in 1992, was an economical font forger who used to forge only three or four letters per font. See http://www.sanskritweb.net/temporary/quebec.pdf

what process would prevent that from happening.

I don't think you need a panel of experts.
Just hire a designer with a reputation based on designing original typefaces.
Stipulate a contract with the usual legalese about the designer guaranteeing that there is no infringement of third party's intellectual property rights.
Then post the resulting prototype on Typophile.

Another way would be for the client to provide the designer with a "hermetic' room to work in, with a detached computer and no font files -- ie no reference material, and say, "come up with some designs".

Because if you were to ask a group of any type designers to recreate the Frutiger typeface (from memory), with no reference material, the results would all be different. Even Adrian Frutiger would come up with something different.

Just hire a designer with a reputation based on designing original typefaces.

Yes, a good start, although originality is only one of the requirements that need to be met.

Then post the resulting prototype on Typophile.

Companies investing in custom typefaces for unannounced products are not going to show those typefaces off in public. Generally speaking, the non-disclosure agreements under which one does this kind of work won't even allow the designer to discuss the project until after it is released.

I'm looking for practical ways for companies to avoid things like the Frutiger/Segoe controversy, and practical means that they have to be acceptable to those companies and their ways of working.

Can one really argue that at those small sizes, a typeface is a knock-off of something else?

With ClearType or without ClearType? :)

The small size bitmaps are a product of the outline font and its hinting, so even if the bitmaps themselves are not considered knock-offs, they are a product of an outline font that may be. If MS had made a bitmap font, I doubt there would be this kind of controversy, even if the bitmaps were identical to those generated by an existing TT version of Frutiger (such as that made for MS's eBook reader).

In the case of Segoe, though, the project includes not only the UI fonts but also the use of the design in MS corporate branding. So clearly this typeface is not only going to be seen at 20ppm or less. Indeed, I first saw it in banners at about 600pt.

John: I’m looking for practical ways for companies to avoid things like the Frutiger/Segoe controversy, and practical means that they have to be acceptable to those companies and their ways of working.

In this case, I believe that there are enough qualified people inside Microsoft that could state the obvious — Segoe resembles Frutiger — if they were consulted (assuming they were not), and this whole thing would never happen.

One sad thing about this story is that people's names get indirectly linked to this issue, and are assumed to be associated with the crucial decisions behind the process, when in fact they might even be against it.

For those who cannot read German, I should like to mention that the German Erik Faulhaber, who was an apprentice at the Linotype Library GmbH, claims to be the designer of "Frutiger Next". At his http://www.erikfaulhaber.de Mr. Faulhaber declares under the header "Typedesign: Frutiger Next":

"Revision and completely new conception of the Frutiger typeface family. 18 font weights commissioned by the Linotype Library" (in German: "Überarbeitung der Schriftfamilie Frutiger mit komplett neuer Konzeption. 18 Schnitte im Auftrag der Linotype Library")

Mr. Bruno Steinert contests that the apprentice Mr. Faulhaber was the designer of "Frutiger Next". See Mr. Steinert's statement at the end of Mr. Faulhaber's German interview at http://www.typeforum.de/news_254.htm

In order to describe this bizarre Faulhaber case, may we use the term "plagiarism", or is the term "imposture" more appropriate?

In this case, I believe that there are enough qualified people inside Microsoft that could state the obvious — Segoe resembles Frutiger — if they were consulted (assuming they were not), and this whole thing would never happen.

Yes.

Also, when Nick wrote 'I don’t think you need a panel of experts', I should have responded immediately that I'm not talkimg about a panel of experts per se. Indeed, a process that relies on individual expertise is generally not a robust process. What is important is a process of review, of exploration, consideration and recommendation. Consultation with experts might form part of the process especially, for instance, where non-Latin fonts are concerned where the provenance of designs can be quite, um, complicated. But the process shouldn't rely on experts. For most cases, all you need is decent research skills and a reasonable amount of time. Cases like Segoe would be the easy ones, where the resemblance is obvious to anyone whose been typographically awake for the past thirty years. Determining whether, for instance, a Bengali typeface is or is not a clone of another is much trickier and needs forensic examination by an expert.

One sad thing about this story is that people’s names get indirectly linked to this issue, and are assumed to be associated with the crucial decisions behind the process, when in fact they might even be against it.

Indeed. I was trying to find the right words to make this very point, Miguel. One shouldn't assume that everyone as Microsoft thought that Segoe was a good idea.

John,

I know that the entire Segoe family includes branding fonts. In the graphics shown at http://www.microsoft.com/ or in the Microsoft printed ads, the typeface surely does look a bit like Frutiger. But I was specifically wondering about Segoe UI.

Uli,

no doubt, Erik Faulhaber has worked on the Frutiger Next project but the extent of that work is disputable. This is a typical case of "getting credit". Type design only recently became an individual effort -- previously, a large team of people worked on a particular type, and yet typically, only one person got the credit as the "designer".

Even today, when FF Meta Pro is published, the credited designer is Erik Spiekermann and not "Spiekermann, van Rossum, de Groot, Schäfer, Lipton, Schwartz, Safayev, Chayeva, Haratzopoulos et al." If it were so, it would be quite ridiculous anyway.

If you want personal credit, you need to negotiate it upfront in the contract.

Christian Schwartz and Erik Spiekermann collaborated on FF Unit and on FF Meta Headline. Schwartz does get personal credit for FF Meta Headline but not for FF Unit -- this is obviously result of different negotiations in different projects.

The credited designer for Frutiger Next is "Adrian Frutiger / Linotype Design Studio". This means that Linotype chose not to personally credit the other designers who worked on the project, including Erik Faulhaber. This is similar for Linotype Univers. This is different for other projects, e.g. Avenir Next is credited as "Adrian Frutiger / Akira Kobayashi", just like Palatino Nova and Optima Nova are credited "Hermann Zapf / Akira Kobayashi".

Altogether, such decisions are made on a per-project basis, and surely depend on the actual creative input of "the other" designer. Sometimes, designers arrange collaborations by themselves -- they might hire a collague to draw the small caps or florins in their own typeface if there is a tight deadline.

Whenever you're a "junior designer" and embark on such a project, make sure to clarify issues such as personal credit *upfront*. Erik Faulhaber seemingly has not. He has seemingly agreed to hide his name behind the "Linotype Design Studio" label but now is trying to change reality retroactively. This is not how you work with other people.

A.

> ... recognise a Lexicon clone.

Apparently you don't know the details. And if you
knew what kind of person Roy Preston is, you might
be motivated to find out. Bill however knows [enough]
of the details, but he chooses to ignore them. That I'm
sure you understand better than almost anybody.

hhp

Hrant, can't you stay on topic? I didn't even mention Lexicon. But if there is a story to tell about that font and Roy, why don't you do everyone a favour and tell it? Somewhere else? Do a little webpage or a Wikipedia entry. It would interest a lot of people and would one hopes be a more permanent record than a blog posting.

It's a little interesting that Faul(es)haber has succeeded for quite some months now in imposing the impression, now revealed by Bruno Steinert to be false, that he is the 'designer' of Frutiger Next. Of course he isn't. At Linotype, even Zapf has an art director. There is someone on this thread who could tell us some stories about designing for Linotype with one of their art directors in charge. ( A Lino art director is not necessarily someone on staff, either; distinguished consultants are sometimes brought in.) It isn't necessary to go into details; suffice it to say that it can be a painful experience and may allow the designer almost no latitude for creativity. This may indeed be something of a corporate psychological holdover from Lino's old days when the designer was but a very small cog in a huge manufacturing process. The type designer as star is a recent phenomenon. Working for Lino could be an ego-bruising, but nevertheless a highly instructive experience.

Of course, one of the pleasures of working on a clone is that an art director is not needed; technical fidelity is the only requisite. That leads to a question: We seem to have established that Segoe is an exact duplication of Frutiger with the exception of one or two exceedingly minor details. I would be curious to know if anyone has looked at the spacing. Does that correspond to the data in hitherto released versions of Frutiger? It would be something, not much, if we knew that Segoe's designers had at least done their own spacing. It would say something, again not much, about intent. If the spacing is identical, for example, to Linotype's, that would enhance the impression that the font was expected to behave identically to Frutiger at a very deep level.

> can’t you stay on topic?

Maybe if it weren't so exceedingly boring.

hhp

> It’s a little interesting that Faul(es)haber...

Congratulations! You obviously like Goethe's mother tongue! The medieval compound "Faulhaber" denoted "having 'much' (faul -> viel = much) 'oats' (haber -> hafer = oats)". But the word "faul", if derived from the Indoeuropean root "pu" (compare the English cognate word "putrid"), denoted in the middle ages "the fragrance of a lady's privy parts". That's the euphemistic semantics of this word. Goethe used another expression :-)

> Does that correspond to the data in hitherto released versions

Both Frutiger & Frutiger Next and Segoe & Segoe UI have slightly different metrics. Furthermore, some glyphs of Segoe and Segoe UI are identical, whereas some other glyphs are minimally different.

BTW: When will you report about the legal opinion of the retired judge?

Hrant: Apparently you don’t know the details.

Actually, I do know most of the details: enough to give Roy Preston the benefit of the doubt regarding both his intentions and his methods. However, the fact remains the result, the typeface he submitted to Morisawa, is too close to Lexicon for comfort. As I've written elsewhere, I've been willing to give Steve Mattheson the benefit of the doubt to: maybe he didn't set out to create a clone of Frutiger, but what matters is the result and how closely it resembles another typeface. In the typical circumstances of judging a competition, these things may slip through from time to time; they should not slip through the process of selecting typefaces to license for major software products, which must be made more rigourous.

Adam: Altogether, such decisions are made on a per-project basis, and surely depend on the actual creative input of “the other” designer.

And on the marketability of the co-designer's name. Crediting a design to Adrian Frutiger and Akira Kobayashi, is a double-whammy for Linotype, linking to typeface to two very talented designers whose work is widely, and rightly, regarded.

He has seemingly agreed to hide his name behind the “Linotype Design Studio” label but now is trying to change reality retroactively.

I have to admit that I sometimes find the attribution to 'Linotype Design Studio' troublesome, not least because it is occasionally applied retroactively. What is the 'Linotype Design Studio'? It suggests a room with a group of people drawing glyphs, filling in character sets, something like the drawing departments of old. But the reality is that 'Linotype Design Studio' might refer to Linotype employees, or to freelance designers, or to other companies hired by Linotype. I understand why Linotype choose to use this attribution and, frankly, it is their privilege since they own the results and the contracts allow them to do this. As you note, Adam, the correct time to establish how a project will be credited is during contract negotiations. But as someone with an interest in history, I'm disappointed to see some interesting stories disappear behind this generic attribution. Sometimes these stories are interesting cases of international collaboration. Sometimes they involve designers of the calibre of Tim Holloway, who is in no way a lesser designer than Adrian Frutiger or Akira Kobayashi, but whose name lacks their marketing cachet.

> I do know most of the details

I don't think so. I was involved from way before
Roy even submitted anything, and still am actually.
If you knew as much as you should, I would know.

> what matters is the result

While I think what matters is the intent.

hhp

...intent

... result

Hrant, why don't you stop posting for two minutes and create some wonderful static, non-ripostable content about this interesting project?

Nevertheless as to intent and Segoe, that is an excellent point. However, I suspect it's something of a red herring even to pose the question as I shall try to explain if you can bear to bear with me. Because as I understand it, this font was already in Monotype's library of Frutiger clones (which also include Univers, used by HP, as well as Linotype clones designed by others). Part of Monotype's business model, apparently, is selling Linotype clones. I believe I am not mistaken in asserting that Segoe was available as a Frutiger clone before Microsoft came a-knocking? Am I not also right in assuming that Monotype marketed Segoe as a direct copy? Am I not further right in assuming that Microsoft asked for a few trivial changes to be made?

One must also consider the substantial body of intellectual property law that has been evolving on derivative works over the past two decades. If a work can be shown to be derivative, then it is infringing. From this point of view, Myriad would, we may suppose, be found infringing. In the base weight, there are a few characters that are different from Frutiger, and the differences are slight, though real. It is clearly a highly derivative work, unusually so, even for type.

But as regards intent, Myriad is in a different category from Segoe altogether. Developed over a three year period, it was not commissioned to resemble Frutiger, was not intended to be Frutiger, did not start off as Frutiger. It only became Frutiger towards the end of a long, painful developement process when Robert discovered that he simply could not come up with a good design of his own. The sans serif is not his metier, and nor, for that matter, is originality. These are not the qualities which make him an interesting and a good designer.

In the case of Segoe, it is obvious that the font was created either by directly appropriating and manipulating the digital data with the intent of disguising not the design but the origination of the data points, or it was created by tracing over the outlines with the intention of matching them exactly but creating new data points. Whichever it was (and I think Linotype's analysis favours the former technique), it is a very different process from the painful journey that Adobe underwent.

Monotype intended to make a literal copy of Frutiger from the start, and they succeeded. Adobe intended to create an entirely original typeface but one that was nevertheless generic in style. That was John Warnock's simple brief for Myriad: create a generic sans serif.

It only became Frutiger after a very long process in which the designer discovered that he couldn't do it to his satisfaction. One must give him credit for recognizing that, and for spending some years working towards that recognition.

The story of Myriad is an almost heroic, almost tragic narrative of a designer's discovery that he cannot do what he was commissioned to do. That is something we can all sympathize with. And we can learn from it.

We can also appreciate the many things that Slimbach (and to a much lesser extent Twombley) did to make Frutiger more flexible and useful. It is worth noting, too, that they probably would not have been permitted to do this had Adobe from the start licensed Frutiger for MM development. How they could have achieved this in an entirely ethical, above board fashion is not readily apparent to me. But again, as regards intent, they did not start off with Frutiger in mind, even if they ended, three years later, with Frutiger very much in mind.

The story of Segoe, by contrast, is one of pure pilfery from the very start. Segoe, after all, is only one of the Frutiger clones in Monotype/Ascender's portfolio. There is also the Univers clone, for example, an exact duplicate of that font, which they sold to Hewlett Packard. And there are others.

In other words, we may have to bring ourselves to accept that Segoe is not a unique case. A substantial part of Monotype's business for well over a decade has been the offering of precise Linotype clones to companies who don't wish to pay Linotype's fees.

The root of the problem isn't Segoe. The root of the problem is Monotype's business plan. The Univers/HP clone was only used for branding. It didn't gain mindshare. Only when Monotype's thefts (I will revert to my own preferred word here) became widely apparent on the public stage (which only happened in the case of Palatino/Book Antiqua and Frutiger/Segoe) did ethical and legal questions come to occupy our interest.

Let us even go a little further: had Monotype not stood up at ATypI and presented Book Antiqua as an entirely original design in type history to a distinguished audience which included Hermann Zapf, and had Microsoft not, again, quite publicly presented Segoe as an original design to be considered as such by historians, and had Microsoft furhter not attempted to register the design as legal, we would not be discussing the matter today.

In both these cases, the crime of fraud was quite openly practised. It is this which accounts for our ire.

While I think what matters is the intent.

The only intent that matters when a typeface is published, i.e. made licenseable, is the intent to publish. The thought process that went into producing the typeface is irrelevant, the intent of the designer(s) in producing the typeface is irrelevant, because the decision to publish is in no way dependent on those creative intentions. The creative intentions are part of the process of creating the typeface, not the process of publishing it.

Even more so, such intentions are irrelevant to the decision to license a typeface. You do not license an intention, you license a thing, a product, a result. And the decision to license a typeface must be based on the nature of that thing, not on the real or stated intent of the person who made it. You have to look at the result, the thing. You have to forget all the claims about how it was made, whether they are true or not, and ignore the all explications of the ways in which it is different from other typefaces, and really look at the bloody thing with an honest eye -- and sometimes with a microscope -- and ask 'Is this thing original enough?' And sometimes the answer is no -- sometimes despite the best intentions to create something original and non-derivative -- and then you just have to set that thing aside and go look elsewhere. You have to, because the best intentions don't change the fact that the thing is a clone.

If Dolly the sheep were created by accident, every cell in her body would still tell you that she's a clone. The intent is irrelevant to what the thing is.

> The only intent that matters when a typeface is published ...

Then you have nothing to complain about.

hhp

> The only intent that matters when a typeface is published, i.e. made licenseable, is the intent to publish. The thought process that went into producing the typeface is irrelevant

Mr. Hudson's view of American law is in conformity with my view of European law concerning font forgeries. Although there are certain types of forgeries, where also the intent or deliberateness to produce is relevant, e.g. the producing of forged bank notes (which is a crime even if they are not published, i.e. circulated), this deliberateness to produce is not relevant as far as art forgeries and font forgeries are concerned. This, of course, only applies to criminal law. In civil law, e.g. with regard to the decision of the invalidity division about Segoe, no intent is required by Bill Gates and all other Microsoft people. Here negligence is sufficient. Negligence means: "Bill Gates should have known that Segoe is a forgery", while deliberateness means: "Bill Gates knows that Segoe is a forgery".

This is really a long-winded thing. There are two issues John's brought up that are interesting though. When Steve worked on this face he did not copy anything, I'm sure of that 'cause I know Steve and that's just not what he's about. The other point is the one where we say, well, what was Frutiger, (the face). It was a typeface family originally designed to work only on Linotype machines.

As such, the contours would have been placed, in each and every detail, to work perfectly with a specific appearance on Linotype machines. What happened subsequently, with Frutiger output to any and all devices that'd take it, with no design compensation in the ps upgrading, means that Frutiger output in 1994, looks a whole lot different and with multiple appearances than Frutiger 1984, rather stable type.

So now, if you take an outline that's a 1984 Frutiger clone, add a new rasterizer, hints, and modifications to the outline for those technical "upgrades", now what have you got? How does Frutiger at 14pt 96 dpi CT, compare to Segoe at 14pt 96 dpi CT? Still the same face? Still a knockoff? Win in court? Stop. Bill, remember how sorry you were when you did this "you stole a font" to me?

David: If someone had come up to you — let's say 5 years ago, or at least long before this story had become an issue — with an unidentified printout of Segoe, asking for your comments on his/her original type design, what do you think you would have said?

Compared to most of you guys I am a mere rookie, a newcomer in the typographic scene. Nonetheless, I know exactly what my first reaction would be: "Why are you showing me Frutiger?"

> It was a typeface family originally designed to work only on Linotype machines.

On which Linotype machines?

The many old Linotype catalogs that I have do NOT contain the Frutiger font.

John, I really like your discussion with regard to intent. It is excellent but it seems to be situated outside the substantial legal issue of intent. I see it more as an ethical view than a legal view. I really wish I could get more into this, and the whole derivative art issue as well. Uli, I haven't had any time to talk to anyone, I hope I will in the next few days.

David, you raise issues that could turn some of our assumptions upside down. What you say about Steve has resonance and is exactly what I would have said - before this.

Your points about original design versus later adaptation are also exceptionally well-taken, as are those about me and hastiness. Moreover, would you agree that it is possible to take two identical fonts, space them differently, and come up with two equally valid products that look quite different in print? But that's a red herring.

Yes, it is important to consider the technological evolution of a typeface. However, here, our assumption is that all Frutiger clones, from Bitstream on downwards, are fairly rigidly based on Linotype's photo masters. All the adaptation that is going to be done has already been done, or nearly so, for photo. Here, also, to be specific, we are talking about Segoe in print, not about Segoe in CT2, and not about Segoe UI, except as it is a clearly derivative product of Segoe.

One thing which might help to clarify the issue would be the answer to these questions:

Did Monotype have a specific Frutiger and/or Frutiger Next clone in its OEM library? Who 'designed' it?

Did Monotype have other specific Linotype clones in its OEM library? Who designed them?

Micromillimetre for micromillimetre, how close are Segoe and Frutiger?

I think what you are touching on here is fair use. This is an area in which your thinking is highly evolved, since a lot of your library is based on well-thought out and impeccably provenanced fair use adaptations of earlier designs. I could not possibly overstate my admiration for the absolutely above-board manner in which you have always done this. But isn't it perhaps just a bit too much of a stretch to postulate that others think as you do and do as you do? You have provided the exactly correct model for how to do this. I need to be convinced that Monotype is following your pattern here. Are they? We have asked Microsoft and Monotype/Ascender to speak up. Where are they?

As a postscript, let me give a small illustration of Font Bureau's modus operandi in this respect, from my own experience. In 1993 or 1994, I made my second baby font, a fairly literal adaptation of an 18th century early Didot. As I didn't know then how to draw digitally, I used Linotype Fairfield as my digital basis - with its designer's (Kazcun's) knowledge and informal consent - he was an early mentor. It wasn't Fairfield, far from it. But it had enough of Fairfield remaining for David to say, sorry, we love it, but it's too close to Fairfield.

Believe me, guys, it would have taken a real expert to know that Fairfield was involved in this substantial redesign. But David saw through it at once. And no, that wasn't the kind of thing that he would put in his library.

So I learned how to digitise from scratch. Nothing could be easier, really, once you catch on to it. And I developed the font a lot further, in many directions. It now has nothing whatever to do with Fairfield. Hey David, wanna see it?

And David, on a serious note, do you think that any of the kind of rigorous aesthetic and ethical thought you put into your work has anything to do with the production of Segoe?

On the subject of the modern legal movement towards rewarding the originator of all derivative art, the New York Times has an instructive front page story today, entitled 'In the Jungle, the Unjust Jungle, a Small Victory'. Were these principles to be applied to typefaces, a high bar would be set, far higher than what most of us think 'fair use' constitutes.

Here's the link: http://www.nytimes.com/2006/03/22/international/africa/22lion.html?ei=50...

This could be where typeface law will some day evolve. It is easy to see that that might not be in the best interests of the industry.

> ... intent

As regards Mr. Troop's interesting motivational hypotheses about the making of Segoe and Myriad, it might be also of interest for Mr. Troop to learn that in European copyright handbooks the following two psychological theories concerning "innocent" copyists are discussed by law experts:

1) Cryptomnesia

The term cryptomnesia (which was also contained in the old Webster's Third New International Dictionary) is defined as "the appearance of memory images, which are not recognized as such, but which appear as original creations".

With regard to a hypothetical "innocent" copyist of the font Frutiger, cryptomnesia would mean that the "innocent" copyist studied and memorized the letter forms of Frutiger a long time ago, e.g. by repeatedly using this font for typesetting advertising headlines. Now much later when he starts to design a "new" font, the "innocent" copyist "automatically" draws these Frutiger letter forms from memory, because he does no longer remember that he once used and memorized the Frutiger letter forms. In other words, the "innocent" copyist thinks that he is creating "new" letter forms, while in fact he is only reproducing existing letter forms memorized long ago.

Some psychologists and law experts claim that the phenomenon of cryptomnesia may happen, whereas others reject this as psychological nonsense.

2) Double Creation

Whereas patent law is based on the principle of priority with the consequence that two identical patents are not allowed, copyright law does not know this principle of priority. Therefore, at least theoretically, two different persons, if they do not know each other's works and provided they (completely independently from one another) both create exactly the same work, they will both become copyright owners of the same identical work.

For very short and simple works, e.g. for TV and radio jingles (technically musical works consisting of a few notes only) double creation has been regarded as possible, although I do deny that. For instance, for jingles consisting of 8 tones out of 12 different musical-scale tones (c, cis, d, es ... h) there are, mathematically speaking, nearly 20 million (exactly 19,958,400) different combinations of 8-tone jingles.

In any case, the German copyright law requires in the rare hypothetical cases of double creations that the "innocent" double creator proves that he really made a completely independent double creation (onus of proof).

As I mentioned earlier, I don't think cryptomnesia is possible in type design.
For instance, if a dozen type designers were asked to recreate the Frutiger A, it's unlikely that any would match the exact angles, overshoot, stem taper, height of the crossbar, and stem thicknesses. And to do the same thing for the whole alphabet would be impossible.

No, the nature of the game is direct reference: copying and modifying outlines, or tracing.

Uli's discussion of Cryptomnesia and double creation helps us deepen our thought and hone in more sharply on the issues. Others will correct me if I am wrong here, but I don't think it is conceivable that either crytomnesia or double creation are viable defenses either in the cases of Myriad or Segoe, since it is obvious that the designers were consciously and intimately familiar with Frutiger. Not only that, but their colleagues, managers and associates were consciously and intimately familiar with Frutiger.

There is no one in the entire type industry who is not consciously and intimately familiar with the design of Frutiger.

On the contrary. What we are seeing here is that intellectual property ethics and law are moving faster than we are. Many of us may have some painful adjustments to make in the years to come. I think much of what John had to say, for example, is beautifully worked out in and of itself, but doesn't take into account the context of what is legally and ethically happening in the rest of the world.

Again, this only comes into focus so acutely in the case of Frutiger/Segoe because it is so intimate a part both of Microsoft's corporate image and so intimate and critical a part of the highly evolved, highly complex product on which it is staking its success for the next decade. Microsoft's dilemma is that it cannot succeed if its product cannot legally be sold within the European Union.

And again: were this a matter of a knockoff used for corporate ID (for a company somewhat less prominent than MS), one that was never registered as an original design or trademarked, no issue would arise because nobody would know about it.

Microsoft is in a mess. Its legal strategy is in shambles. I don't see what ultimate choice they have but to settle with Linotype and I predict this will quietly happen, as it nearly did last year.

And that will be good. Linotype deserves the money. Frutiger deserves the money. I only hope he gets it before he dies. Given how bad Microsoft will look if they drag this out until Frutiger is no longer alive, I encourage Microsoft to move towards a very rapid settlement.

To be blunt, Si, and all the rest of you at Microsoft, if you get Frutiger on board now, he's an asset and you'll be heroes, although you'll be poorer heroes: by a penny per OS you sell. But if you wait until he's gone, you'll always be seen as Pontius Pilate. Is that the outcome you desire? Can you live with that outcome on both the personal and corporate levels?

The question isn't whether you will settle, but when.

"David: If someone had come up to you — let’s say 5 years ago, or at least long before this story had become an issue — with an unidentified printout of Segoe, asking for your comments on his/her original type design, what do you think you would have said?"

It's too close to Frutiger for our "print" library, why don't you do an online face:)"

"Hey David, wanna see it?"
Sure!

"And David, on a serious note, do you think that any of the kind of rigorous aesthetic and ethical thought you put into your work has anything to do with the production of Segoe?"

Oh, that wasn't serious? Yes, I do believe that as far as resolution resistant designs go, Madison and Co. do as much work in figuring out the right design as we do in our print fonts.

"For instance, if a dozen type designers were asked to recreate the Frutiger A, it’s unlikely that any would match the exact angles, overshoot, stem taper, height of the crossbar, and stem thicknesses. "

I think that question is clear, and the answer is no, they would not make the same A. But, if they were all told that the A had to be on 37/54ths of an em, and that 100 unit stems would be required to produce a proper "book" face, then they would all be extremely close, and some, if enough we solicited, would be exactly the same. That, in a technologically constricted world, is what happens.

I've been on all sides and the middle of these arguments time and time again, and I tell you, nothing anyone says, (besides me of course), makes sense, until you've got them both on a light table and you can trace the differences and similarities to genuine typographic motives, (not including of course, "can you make me a copy?"), or you can't.

'until you’ve got them both on a light table and you can trace the differences and similarities to genuine typographic motives'

Fair enough. So, has anybody here actually done that? And David, would it count if I took the two fonts into Fog 5, one font in the foreground, other in the background, scale to match, and examined at 800%, 3200%, whatever? I really wish someone else would do that. After all this talk, I'm afraid of what I might find!

> scale to match, and examined at 800%, 3200%, whatever?
> I really wish someone else would do that (Mr. Troop)

I wonder why you do not that yourself, if you think it is that important.

In the UPS case, a reduction to 95.3 % (= a reduction by 4.7 %) of the glyph coordinates of the forgery "UPS Sans" yielded the glyphs of the font "FF Dax". But this reduction was only the first "crude task" performed by the font forgers who had been commissioned by United Parcel Service to forge the FF Dax font. Thereafter, as a second "refined task", these professional font forgers were ordered by UPS to make a few conspicuous modifications to a small selection of glyphs, as has been demonstrated by me on pages 9 and 15 in my documentation http://www.sanskritweb.net/forgers/barmen.pdf

> and sometimes with a microscope (Mr. Hudson)

No court judge in Europe would examine a font with a microscope. The decision of the invalidity division of the sixth of February 2006 has clearly shown that fonts are compared by the invalidity division (and by European law courts, for that matter) with the naked eye, not with microscopes and similar tools. Such tools (microscopes, X-ray, chemicals etc.) are applied in art forgery cases, but not in font forgery cases, where ordinary printed alphabets typeset in ordinary point sizes and viewed with the ordinary human eye is all that is required in order to arrive at the conclusion that two different fonts "should be considered identical" (see invalidity decision).

PS: Here is an example of cryptomnesia. I have just wondered why I write "naked eye". Did I "create" this expression? Apparently not. I now think that I once seem to have read this saying: "Neither the sun nor death can be looked at with the naked eye". But did this saying really have this wording? Was it "...with the steady eye"?

A very preliminary impression, comparing Lino/Adobe Frutiger to Segoe UI. Steps are 1, open Segoe UI in Fontlab, 2, convert to PS, 3, open in Fog 5, 4, place Lino Frutiger in background, 5, scale 98.04% to match x-height. Frutiger is slightly wider and slightly heavier, making a direct comparison difficult without adjusting weight and horizontal scale. Even so, several lowercase glyphs are, in what seems to be the common consensus, too close, but there are some differences and it is clear that there is not the intention, here, to make an absolutely literal copy. However, this is Segoe UI, not Segoe, and has been further altered for UI purposes. There are many, many similarities, and there are differences. It seems hardly conceivable that the font was drawn without reference to Frutiger, but how and to what extent, I can't conclude at this early date. I would appreciate hearing the impressions of someone more skilled in font forensics. The last time I checked a font for signs of literal pilfery was several years ago when I checked Le Monde against several cuts of Times New Roman and discovered and published indisputable evidence of point pilfering from a specific cut of Times New Roman that Adobe shipped with Illustrator 6. I see no evidence of point pilfering with Segoe, but then, it would be hard to do that given that one is in PS format and the other in TT, and I am comparing PS to a TT conversion whose quality I have not tested. However, the difference in design between Times and Le Monde is far greater than the difference between Segoe UI and Lino/Adobe Frutiger. The purpose of the Le Monde analysis was to discover if Porchez was telling the truth when he first asserted that he had point pirated, or whether he was telling the truth when he later denied it. I concluded and illustrated that the first statement was the true one. In either case, it was indisputable that the designs were substantially different. Here, the purpose is not to discover if point piracy exists, since it is beyond my skill to do that cross-format, but to discover if design piracy exists. Between these two fonts I will only for the time being adopt the phrase used I think by both John and Adam, that the fonts are too close. I can't find my other Segoe fonts, so the rest will have to wait until tomorrow. I also don't know what the differences are in the base weights of Lino/Adobe Frutiger and Linotype Frutiger Next, so those comparisons have to be made too.

By the way, I'd like further to point out that when I sent my Didot to David years ago, that was in the days when we still sent paper samples only. David's eyes detected its digital derivation from Fairfield without the benefit of computer software. That guy doesn't need to look at points to figure out what's going on!

Speaking only for myself: if I had to take the idea I have in my head of Frutiger, and draw something to it as close as I could, without being permitted to consult large printouts of Frutiger or anything I could trace over, I don't think I could come up with something that was as close to Frutiger as Segoe UI is. But that's all I can say. Others have completely different skill sets and I am sure there are many who could do a better job of this hypothetical task than me.

Again, there are some German display types of the 1920s that have some pre-Frutiger features. Were I to adapt one of these bold and compressed fonts to a normal weight, as I have sometimes thought of doing, I doubt that the result would be considered to be a Frutiger clone. But that's just me.

'Such tools (microscopes, X-ray, chemicals etc.) are applied in art forgery cases, but not in font forgery cases, where ordinary printed alphabets typeset in ordinary point sizes and viewed with the ordinary human eye is all that is required in order to arrive at the conclusion that two different fonts “should be considered identical” (see invalidity decision).'

Of course everything I have just written about my preliminary but time-consuming comparison is more or less invalidated by this . . .

As I have suggested before, many of us in the font industry have some catching up to do. The EU needs to have common IP laws to the greatest extent possible; in practice that means that the laws most favourable to artists/creators will be adopted. Corporations with international product lines will have to comply with EU standards (just as DVD-burner manufacturers have just had quite painfully to retool to comply with EU standards), and eventually, US and British laws will probably follow suit, long after US and British manufacturers have had to. The ethics many of us have spent a long time working out are not likely to meet the standards Uli has described above. I can imagine this having some good effects and some bad effects for the type industry.

But, if they were all told that the A had to be on 37/54ths of an em, and that 100 unit stems would be required to produce a proper “book” face, then they would all be extremely close, and some, if enough we solicited, would be exactly the same.

Good point David. If a type designer is asked to better the performance of a particular font (with quite specific parameters of usage), wherever he/she starts, the result is going to be, to all intents and purposes, the same typeface -- if not the same font. It's a testimony to the virtue of the original typeface. I've done that, started with a different font, massaged it to the client's needs, and even though no point piracy was involved, it ended up in a state where a forensic typographer could probably have proved that some piracy was involved. But the typeface was the "open source" Century (much of it indistinguishable from Bodoni), and in a display usage that Benton or Bodoni could not have envisaged. I wouldn't have attempted the same kind of thing with Frutiger.

So a lot of responsibility falls on the creative director of the vehicle for which the typeface is intended, and the brief given to the type designer. If a brand's typography is predicated on a certain type of layout that demands a Frutiger-ish typeface, that's asking for trouble. To avoid trouble, an older typeface should be used, or a genre with more flexibility, or best of all, a fresh kind of layout that prompts an original type design.

Why does an OS typography have to be generically bland? Apple has consistently pointed the way in terms of GUI style, and MS has followed. But the types (with the exception of Chicago) have dragged up the rear. Apple's present OS face is a bit Optima-ish and slightly old-fashioned. The door is wide open for a new "square" or techno OS face, surely the widespread use of pixel-fonts on web sites has paved the way. Companies whose software products are up-to-date end up using vintage typefaces. The pride-of-place given to type revivals and the millstone of traditionalism drag down typography, and have a lot to answer for.

> Apple has consistently pointed the way in terms of GUI style

Not when it comes to the type, not for the past few years.
Apple now lets us down at almost every turn. Myriad?! Sheesh.

hhp