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Legal Restrictions On Type Designs

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Dave Crossland's picture
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Joined: 14 Feb 2007 - 1:47pm
Legal Restrictions On Type Designs
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(I am not a lawyer, the following is not legal advice.)

Recently on the OpenType mailing list, the topic of legal restrictions on type designs and font programs came up again; someone said that there is an "absence of protection for the shapes" and in my humble opinion this is an old chestnut :-)

There is certainly no absence of restriction for the shapes! :-)

Typeface designs are subject to "design patent" restrictions in the USA, not copyright restrictions, because the US government understands them to be functional works rather than artistic ones. These patents are not granted automatically like copyright now is, but must be registered (like a 'regular' "utility patent") and run for 14 years.

In the UK the shapes are subject to "design rights" which can work like copyright in that they are granted automatically, and like patents in that they can be registered. The unregistered term is 5
years but a type designer can register their designs for periods of 5 years up to 5 times. There are also EU Design Rights (cf the Microsoft/Linotype spat over Segoe/Frutiger) which work similarly across the EU.

So the term of restriction in the UK and EU is 5 years automatically and up to 25 years, and 14 in the USA.

But I don't know about other countries (eg, Canada) but I hope this post is enough to get people interested to find out what the deal is in your country, and post your findings here if you turn anything up - or if you think I'm mistaken :-)

Best,
Dave

Dan Reynolds's picture
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Actually, this thread should be titled "Legal Protections for Type Designs."

The problem with Design Patents is that (except perhaps in the UK) one must apply for them, and this may take considerable time and funding. Also (and my understanding here is limited), I do not think that US Design Patents—as opposed to the European ones—are regularly issued for typefaces.

If I write a book, or even an essay on typeface design, this content is protected automatically. As the author, the work is my own, and protected by copyright, at least for a certain amount of time. If someone else reads my book or essay, and then republishes it without my consent, this is a violation of my copyright and I can try to collect damages.

But if I draw letterforms (except, perhaps in the UK, where you state that there may be an automatic protection) these are not automatically protected. If someone else (outside of the UK) sees them and then redraws them closely himself, this is not seen as a violation of my creation, and I may not collect damages.

If I register my shapes with relevant offices, then I may be able to protect my work more effectively. But I do not appreciate that my letters are protectable to a lesser degree than the words I write. Especially because I hope that I can create type much better than I can write about it.

Note that we are just talking about shapes here, right? This could apply to letters written with a brush or pen on paper. Fortunately for typeface designers, their letters most often enter the world in fonts. Since fonts are seen in certain jurisdictions as literary works (long story), they are protected by copyright. If someone edits my font without my permission, that is a copyright violation, and I could go about it the same as I could were someone to repurpose my book or essay.

Uli Stiehl's picture
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> The unregistered term is 5 years

Please quote the UK law source for your statement.

John S's picture
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What if the rights are owned by a company, for whom the designer did his work-for-hire in the 1920s...let's say the typeface was never completed with bolder weights, and the later digital conversion was bungled so that finer strokes die below 9 pt. Let's say the company doesn't care (insert name here) and some young designer, on his own, wants to rework that face, add weights, and correct the fine-stroke and other problems. When, if ever, can he do so legally as from a public domain source? There are so many early 20th century abortions that ambitious young designers can really serve the public by re-working to suit today's requirements. Will that ever be permissible legally?

Uli Stiehl's picture
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> What if the rights are owned by a company, for whom the designer did his work-for-hire in the 1920s...

The company cannot own the rights, if the design was made more than 80 years ago. I assume the company claims to own the rights in order to cheat font buyers.

Florian Hardwig's picture
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Joined: 18 Feb 2007 - 6:41am
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Will that ever be permissible legal?

In my understanding: yes – as long as this young designer doesn’t use the old digital outlines as a starting point, and as long as he/she makes up a (new) name that isn’t protected.
There still would remain the moral aspects, but that wasn’t part of your question, right?

Dave Crossland's picture
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First, I must apologise for the initial post as it contains incorrect information: I confused the EU's automatic design right as a UK one, and said it was 5 years when it is actually 3. I should have waited to fact check everything and link it up before posting, thanks Uli for bringing this forward :-) My apologies.

USA: "Patents for designs shall be granted for the term of 14 years from the date of grant." and the first ever design patent was for a typeface. I've not yet found out how much it costs.

EU: "Community Designs" are either unregistered, which means automatic (like copyright) and those last 3 years (although they only started on 12th December 2001) or they are registered (like patents) which "confers on the design great certainty should infringement occur" and last 5 years from the filing date but can be renewed in blocks of five years up to a maximum of 25 years. The cost is variable because registrations can be done in batches but a single design for immediate publication appears to cost €350 - there is a cost calculator webpage to play with.

UK: the copyright law has a section specifically for typefaces that gives them a 25 year copyright term, and that is the same length as for "typographical arrangements" (book/magazine/etc layouts). And this is the same length of the maximum term for UK "registered designs" which, like EU RCD, last 5 years and can be renewed 5 times - though it seems redundant. Registrations cost £60 but may be done in batches where the rest cost £40. You can reduce this to £40/£20 if you wait a year between registering the design and publishing it.

@Dan: If these laws are protections or restrictions is matter of perspective, and we consider each other's terms to be biased against our own views. I welcome you suggestions for neutral terms :-)

The reason the lettershapes are restricted differently to the words we write are because they are fundementally different things. The terms of copyright vary according to different kinds of things, and many things are not subject to copyright because they are functional; letter shapes are functional - we use them to read. Art, like a painting or a text, isn't used to do something.

And yes, this is talking about purely shapes, which may be expressed in ink brushed on to paper, engraved in metal, shaped in potato, as dots of ink lazered on to paper. All of those expressions are considered as the type design directly. However, when a program describes the shapes, that program is copyright, like any other program. That we create our PostScript programs with GUIs for our convenience, may fool us into thinking that they are not programs, but they are programs whic output dots of ink on paper or dots of light on screens.

Simon Daniels's picture
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>What if the rights are owned by a company, for whom the designer did his work-for-hire in the 1920s...

See http://typophile.com/node/32941

Dave Crossland's picture
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@mondoB: This is not legal advice, but it seems to me that its absolutely legally permissable after 25 years, worldwide. You are right that there's goldmines of great stuff in dusty old archives, but I personally think its more interesting, more of a challenge for myself, to make wholly original designs than to make revivals. But then Raph has turned making revivals into a real personal challenge, developing his own hardcore type design software specifically for doing revivals :-)

@Uli: URL for where your 80 years comes from? :-) (Oh, perhaps you mean because mondoB's example of the 1920s..?)

@Florian: The font program cannot be used as a starting point because it is subject to copyright restriction. And one has to make up a new name for all your type designs, because many names are subject to trademark restrictions. Trademarks have an indefinite term, and expire when you stop defending them - like Tannoy or Hoover (and probably soon Google too ;-)

Thomas Phinney's picture
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I wrote a general overview of the topic a couple of years ago: http://blogs.adobe.com/typblography/2006/01/legal_protectio.html

Cheers,

T

Dave Crossland's picture
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Btw, John Hudson wrote on the OpenType list, reposted here with permission:

I'm very familiar with the legal status of type design as intellectual property in US patent and copyright law. Yes, there is design patent protection, but since no case involving design patent protection for typeface design has ever come to trial there is no test of the solidity of the protection. Design patent protection would presumably have figured in the Adobe vs SSi case if it had gone to trial, but SSi settled following the summary judgement on the *computer program copyright* issue. This is an example of the phenomemon to which I referred: software copyright protection has become the first line of defence, even though the primary value of the font -- what people are interesting in copying -- is the distinctive design, the content of the font.

The only font developers I know who file for design patent protection for typefaces are large corporations like Adobe (regularly) and Microsoft (occasionally), i.e. people with internal legal departments or external lawyers to do the filing for them. I don't know any small foundries who pursue this protection, and no individual type designers. It is expensive and it is a hassle. One of the arguments in favour of copyright protection vs patent protection is that the former is better suited to protecting the work of an individual creator, including protecting him or her against corporate predation.

It is possible to register typefaces in Canada as industrial designs for a limited period (I can't remember how long off hand, possibly 15 years). This is similar to the US design patent protection. I'm not sure, however, whether Canadian law specifically excludes typeface designs from copyright protection, as US law does. As far as I know, it has never been argued in court, so remains an open question (and likely one that no one is in any hurry to put to the test, especially after the outcome of Eltra vs Ringer).

My basic point was that protection of the font as software is effectively seen as the first line of defence of the content of the font, the design. Hence concerns about protection of the design play a role in determining the attitude of font developers to modification licenses.

John S's picture
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Florian asked about the moral aspect of type reclamation...for me, that's easier to answer than the legal aspect. If a big company issues a prewar type family without extra weights, and botches the digital conversion later so that you really have a crappy product not in any way matching the design potential and beauty of the fonts...that to me is a surrender of the company's duty to the public so egregious that smarter type designers should be free to wade in and correct everything, so the public can at last use this typeface fully. We had a thread the other day about one such family, so I don't need to mention examples. And there are plenty of them.

Florian, thanks for that beautifully uttered mp3 you posted. I'm keeping it in my system in case I forget! And my my, what a butch voice you have!!

Nick Shinn's picture
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Dave, that "permission" probably didn't extend to rewriting it as modern verse!

***

The duration of copyright protection is a major issue.
Originally copyright, a concept applied to literary works, was perpetual.
12, 25, 40 years were all terms that were legal at one point or another.

The idea is to find a compromise which protects the intellectual property of the creator, and their ability to profit from it*, but doesn't stifle culture (and the economy) by restricting the dissemination of innovation.

*Article 26.2 of the UN Declaration of Human Rights:
"Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."
-Doesn't mention design, though!

Dan Reynolds's picture
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Before I came to Reading and was in Linotype's markteing department, I looked into German design patents and US copyright and trademark registration a little bit.

For new typeface releases, including designs that come from out-of-house (i.e., from external designers whom we licensed from), we would often register for German Design Patents, when possible. In cases where the designs were licensed to us, I belive that it would also have been possible for the designers to register for these patents themselves, although I doubt that any wanted to assume this burden when we gladly did the work for them. I'm sure that other European foundries do similarly as well.

In my opinion, when a company licenses a typeface from its designer, it has a duty to protect it in any way that it can. One of the benefits of licensing through a foundry is that many foundries do actively protect their typefaces, and make sure that unlicensed copies are removed from websites, etc. Sure, any independent designer can do this on his own as well, but it takes a lot of time and effort.

Dan Reynolds's picture
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> Dave, that “permission” probably didn’t extend to rewriting it as modern verse!

Oh, yes, that is a bit difficult to read here in this forum. It looks better in my RRS reader. Dave, could you go back into that post and edit the odd line breaks out?

Blank's picture
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Does anyone know the costs of applying for and getting a US Patent on a typeface? I spoke with a lawyer who told me it could be as little as $250 assuming that one did not actually hire a lawyer to do the work, but he was also a bit tipsy so that number has always seemed suspect.

Dave Crossland's picture
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@Dan and Nick: Sure, done :-)

@Nick: Do you have a source for the idea that "Originally copyright ... was perpetual"?

That's not my understanding at all, which is that it originated in Italy in the late 1400s and ran for less than a decade, but varied from book to book, and was not about printers' or authors' profits at all, but about incentivising printers to print classic books so the public benefited.

Okay, since I spouted off before doing any checking to begin this thread ;) I had a look at Wikipedia, and http://en.wikipedia.org/wiki/History_of_copyright_law#Movable_type says in Italy at that time copyright was no longer than 14 years, and the first English copyright term was 2 years. Two! lol

I'm also in disagreement with your proposed purpose of copyright, because it merges innovation with authorship. Copyright is about authorship, not innovation - that is what patents are for. Copyright is not an "attempt to strike a balance" either - a common misconception.

I hope you'll consider not using the term "intellectual property" because it invites confusion like this, because it implies that copyright, trademark and patent laws and others have something meaningful in common. All they have in common is that they are government-granted monopolies, but everything else about them differs - their origins, purposes, terms... every detail! :-) Additionally it carries the assumption that these things are akin to physical property, which invites nonsensical thinking like that they can be "stolen."

Regarding the UN Declaration of Human Rights quote, I understand the "protection of the moral and material interests" to concern accurate attribution. Plagiarism is often conflated with copyright infringement since both are colloquially called "copying" :-)

Dave Crossland's picture
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@James: Sorry, I gave up browsing www.uspto.gov as I couldn't find a straight answer. Hopefully someone at a foundry that does register them in the USA will comment..? :-)

Dan Reynolds's picture
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Regarding copyright, authorship, patents, innovation, etc., I am glad that there are actually multiple means to protect our typefaces. This is not about "big monopolies," but about typeface designers (some of whom are part of individual operations, some of whom are not) being able to protect their investment. Many members of this forum are practicing typefaces designers who are happy to see their work protected. I don't see how type and fonts can be compared to any sort of big industry; the comparison doesn't quite hold up, in my opinion.

Also, I have at one time found the lists of costs for US coyrights and trademarks (but not US design patents). Unfortunately, that was years ago, and I don't have the links handy. I don't know whether you'd call the figures cheap or expensive. I guess it depends what you compare them to…

Matthew Stephen Stuckwisch's picture
Joined: 7 Feb 2007 - 10:21am
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Here is a schedule of fees for US Patents.

http://www.uspto.gov/web/offices/ac/qs/ope/fee2007september30_2007dec17.htm

Looks like it'll run you a couple hundred.

«El futuro es una línea tan fina que apenas nos damos cuenta de pintarla nosotros mismos». (La Luz Oscura, por Javier Guerrero)

Dave Crossland's picture
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@Dan: There are two kinds of monopolies, "pure monopoly" where there is only a single provider of a product or service, and a "market monopoly" where there is a highly dominant agent in a market but who does not have a "pure monopoly," just they are the proverbial "800 pound gorilla." For example, Microsoft has enjoyed a "market monopoly" on PC operating systems and officeware.

You are totally correct that there are no market monopolies in the type design scene, and I am referring to the other kind of monopoly; when I say that copyrights, patents and trademarks are government-granted monopolies, I mean they are "pure monopoly" on certain tiny aspects of the economy. In the UK, you have a 25 year monopoly on your type designs, because they are subject to a 25 year copyright term.

FWIW, AIUI, this phrase "government-granted monopoly" originates from Elizabethan England, as I recall, where the royalty gave out monopolies to companies that did them political favors.

@Guifa: Perfect, thanks! :-)

--
Regards,
Dave

Thomas Phinney's picture
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I replied to John H's comment as follows:

John Hudson wrote:

> Yes, there is design patent
> protection, but since no case involving design patent
> protection for typeface design has
> ever come to trial there is no test of the solidity of the
> protection. Design patent
> protection would presumably have figured in the Adobe vs SSi
> case if it had gone to trial,

It got far enough in the trial that Judge Whyte's summary judgment included this point:

"Based upon the reasoning of Tayama, type fonts are patentable subject matter and the program which creates the type fonts is the article of manufacture. Accordingly, the court finds that the typeface designs are statutory subject matter entitled to patent protection."

I think that's pretty useful information.

What was not resolved in this case were SSi's claims that the *particular* Adobe typeface design patents in question were invalid for a variety of reasons. I agree that seeing the results of the full set of patent issues would have been very interesting, most especially the claim that the patented designs were insufficiently novel and non-obvious.

Regards,

T

(Of course, all the discussion in this message is in regard to US law. Things may be substantially different in other jurisdictions.)

Dan Reynolds's picture
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>In the UK, you have a 25 year monopoly on your type designs, because they are subject to a 25 year copyright term.

Well, I think that is good. They are your typeface designs after all. Without you, they would not be.

>FWIW, AIUI, this phrase “government-granted monopoly” originates from Elizabethan England, as I recall, where the royalty gave out monopolies to companies that did them political favors.

Well, like the rest of Elizabethan England, I don't see how that has much relevance on the 21st Century. Terms change from their original intent all the time. Not to get too down on Elizabeth I, though… that Shakespeare chap wrote some hot stuff, for instance.

Dave Crossland's picture
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> > In the UK, you have a 25 year monopoly on your type designs, because they are subject to a 25 year copyright term.
>
> Well, I think that is good. They are your typeface designs after all. Without you, they would not be.

They are always your designs; no one I know of is in favor of non-attribution of any kind of work.

I also think 25 years is a reasonable length for restrictions on modifications to type designs, in tandem with current trademark law so that your 'tribute' to Helvetica can't be called "Helvetica."

> like the rest of Elizabethan England, I don’t see how that has much relevance on the 21st Century.

I thought it was relevant as a matter of etymology, but I guess this disqualifies "monopoly" as a neutral term between "protection" and "restriction"... :-)