Your understanding is essentially correct in the USA. The actual software (the font file) is protected by copyright, so everyone who uses the font on their computer needs to buy a copy or have a license. But the visual image of the font and the outlines generated by Illustrator to be used in a logo have no protection whatsoever.

The legal reasoning is that the alphabet itself is purely functional, but the software that makes up a complete font is a creative work.

Similarly, the information printed in the phone book is factual and anyone can reproduce it, but the phone book itself is protected by copyright because that particular chosen arrangement of the collection of facts is a creative work.

Thanks nmerriam

I had no idea that the legalities of typefaces were so...strange? I always assumed that typefaces were copyrightable and that in order to use a typeface for something you had to have a specific license to use it in that way. Personally I don’t see how anyone can say “that drawing of a cat is copyrightable but that drawing of the letter ’A’ isn’t”, but I’m sure I’m not the only person who disagrees with the way the court handle this. :-)

I don’t mean to explicitly lay out all the ways in which people can legally steal font creators’ work, but I want to understand the situation as well as possible so I thought of some examples.

Say you purchase a font from a foundry with different licensing agreements based on the way you’re going to use the font. For example, they have a “basic” license that lets you use the font for setting general type like body copy, then a more-expensive license that that you must purchase to use the font to create a logo design. Since the letterforms aren’t copyrightable, does that mean you can legally purchase the less expensive license, type out all the letters in the font in Illustrator, convert them to outlines, and then use the outlines to create a logo design without having to pay for the other license? If this is the case, why do they even have a license like that in the first place? It seems like this is an instance of someone essentially trying to “trick” people into thinking they have to purchase licenses they can can legally avoid purchasing, which seems about as unethical as stealing letterform designs. Shouldn’t font creators be trying to change the laws by suing people? I know it’s not that easy, and I’m not saying people should be expected to create designs and just let people do whatever they want to with them without paying them. I just want to know what the “courts” say about it, whether it makes sense or not.

Also, doesn’t this mean that you can alter the letterforms in a font without permission even if the license agreement specifically says you can’t create “derivative works” or “manipulate” the letterforms? As long as you’re not altering the font program itself, there’s no legal issue, right? For example, say I use a font I’ve purchased to create a logo of the word “Forkz”, but I want to change the K so it joins up with the Z. This is legal as long as I convert the letters to outlines (which you would have to do anyway) even if the license says I can’t alter the letterforms, right? Having a general stipulation like that in a font license would be invalid to begin with, right?

I guess what I’m trying to ask is, does the license for a font only extend to the program and not in any way to the letterforms contained in it? If this is the case, why don’t people just make new fonts using the letterforms contained in existing fonts? Once again, let me say that I don’t think this is “right” in any way, and I would never do that myself. I’m just trying to understands the situation.

One more example. Say you’ve purchased a font that contains the usual tyopgraphic symbols, plus a drawing of a monkey that was created by the font creator. The tyopgraphic symbols would be uncopyrightable, but since the money isn’t a letterform, it would be protected by copyright, right? The font creator wouldn’t have to have a “design patent” for that symbol in order to lay claim to the design, right? So, for instance, the designs in a font of “dingbats” WOULD be protected as long as they were unique enough to be copyrighted? Like, a generic five-pointed star wouldn’t be protected, but a five-pointed star with a human face drawn inside would be?

Sorry about the length of this post, I’m just interested in the intricacies of this.

No worries on the detail, I actually started mentioning some of those points in my earlier response but didn’t want to muddy the issue :)

You understand pretty much everything. Fonts can certainly contain objects that aren’t letterforms, and any of those could be protected as images by copyright because they aren’t functional (your contrasting star examples are perfect). There’s no easy way to know at what point a court would consider an image an original creative work.

In terms of licensing and limitations on use, the only way to enforce a restriction would be through contract law, not copyright. Whether or not (and in what ways) a standard EULA can restrict use can be a contentious issue around here, so I won’t give you a simple answer, but in terms of copyright law, once you have the shape of the letter, you can quite literally do whatever you want with it.

You can indeed drop your type into Illustrator, convert to outlines, and then adjust whatever you like in order to make a logotype fit together better. You could also, as you suggest, convert or scan every letter in a face and then make your own font out of it and resell it. But you’ll have to go through and do all the hinting, all the kerning, all the testing and balancing over again, which is a lot of time-consuming skilled work. If you remember those CDs that were popular in the 90s with 5,000 fonts for $49, generally they were filled with fonts that were made in just that way (except without all the care!). The quality of a font made that way is not very high — its one of those things that sounds a lot easier than it really is :)

For example, they have a “basic” license that lets you use the font for setting general type like body copy, then a more-expensive license that that you must purchase to use the font to create a logo design. Since the letterforms aren’t copyrightable, does that mean you can legally purchase the less expensive license, type out all the letters in the font in Illustrator, convert them to outlines, and then use the outlines to create a logo design without having to pay for the other license?

Also, doesn’t this mean that you can alter the letterforms in a font without permission even if the license agreement specifically says you can’t create “derivative works” or “manipulate” the letterforms?

As I understand it: No, you’re not allowed to do this. Because you licenced the font you are bound by the licence agreement. Copyright laws don’t apply unless there are any illegal licence terms in the EULA, in which case only these terms would be void and legal restrictions or permissions determined by copyright laws would replace them.

There are, however, certain conditions in which a licence agreement is not effective. For example, in Germany, if you purchase software on a physical medium, your right to use the software comes from the possession of the medium, so any licence agreements you have to accept later (e.g. when installing the software) are void. Then your use of the software would only be bound by copyright laws.

That being said, I’m not a lawyer.

Jens

This is fascinating, and a very much needed topic for discussion.

In the spirit of continuing the discussion, I’d like to postulate a hypothetical: As we’ve seen here a few days ago, web browsers (particularly WebKit/Safari) are starting to correctly parse CSS3, including the ’embedded fonts’ feature. This conflicts sharply with most foundry’s EULAs regarding uage of their font files. From what I’m reading here, would it not be an acceptable (in a practical sense-ethics aside) end run around this issue to take the font you want to use, create outlines in Illustrator, create your own font file from these outlines (hopefully with attention paid to kerning tables, hinting, etc., of course!), and use that as the embedded font in your website?

While it would seem to me that the foundry’s EULAs are in sore need of rewording in order to reflect current and future usage practices, this would seem, at face value, as an alternative to exposing yourself to litigation, while still enjoying the new typographical features available on modern browsers.

Any thoughts?

Pabla — your situation is certainly possible (again, in terms of copyright — whether or not the license prohibits it and is binding in your jurisdiction is a totally separate issue). But like I said, the quality of such a project is generally not going to match up with expectations. You’d certainly get a much better looking site by using well-designed, professionally optimized fonts that are allowed to be downloaded, or are widely distributed, than trying to hack out look-alikes of some offbeat face. It’s much simpler to use existing image replacement techniques for headings and other small blocks where a really unique face needs to be used.

I’m not a lawyer, and this is a legal question for which you really ought to consult a lawyer.

That being said.... At least in the USA, the outlines from the font software ARE protected by copyright. At least, that’s how I as a non-lawyer read Judge Whyte’s summary judgment ruling in the Adobe vs SSI case.

“Adobe claims there is some creativity involved in the manipulation and editing of the on-curve and off-curve reference points. Defendants claim there is no protectable creativity contributed by the editor in determining the desired character outline for each font.”
...
“The evidence presented shows that there is some creativity in designing the font software programs. While the glyph dictates to a certain extent what points the editor must choose, it does not dictate every point that must be chosen. Adobe has shown that font editors make creative choices as to what points to select based on the image in front of them on the computer screen. The code is determined directly from the selection of the points. Thus, any copying of the points is copying of literal expression, that is, in essence, copying of the computer code itself.”

Full decision here: http://directory.serifmagazine.com/Ethics_and_Law/Copyright/judgement.ph...

Now, most licensing of fonts seems to allow you to use the outlines for things like logos. But that doesn’t mean there’s no copyright inherent in the outlines.

Cheers,

T

@ nmerriam,

Oh, don’t get me wrong: I agree wholeheartedly—a lot of work goes into a good, quality professional font, and it would be bad craftsmanship to use anything other than that. I was just postulating the situation as a hypothetical, concentrating on the legal issues involved, to the exclusion of all else.

Just to clarify what seems to be a contradiction between what I’ve said and what Thomas is talking about — while the shapes of the letters are not protected, the specific selection of points and curves that the creator uses to accomplish that shape is protected by copyright. Anyone who works with bezier curves knows that you can create the same shape a thousand different ways, and doing a literal point-for-point, curve-for-curve duplication or derivation of someone else’s choices isn’t allowed (much like the phone book case, where the arrangement itself is a creative work).