Legal to modify an existing retail font and sell it to a client?

fontdesigner2's picture

I see a lot of font foundries offering custom font solutions to clients where they say that they would take an existing retail font (many protected by an End User License Agreement that clearly states that altering and selling the font is not allowed) and alter it slightly and sell it to the client.

Is this really legal?

Frode Bo Helland's picture

Modifying and (retail) "reselling" is prohobited by just about any EULA out there, even for most free fonts. Some EULA's allow modifications for personal use, and some EULA's allow third-parties to make modifications for the client. Some again require you to contact the reseller/foundry to ask before you hire a third-party.

clauses's picture

Where do you see that?

Té Rowan's picture

For the foundries' own fonts, yes. For others' fonts, they could only honestly advertise third-party alteration services; to take a font you already have and tailor it to your specs for a price.

dezcom's picture

For fonts whose EULAs allow modifications by someone other than the original foundry, the font is not resold back to the original purchaser. The person who did the modification work is simply paid for his/her services. This is not a product sale. If you buy a Ford truck and later bring it to a custom shop to add a trailer hitch, the custom shop does not resell your truck, they just charge you for the services rendered.

fontdesigner2's picture

This is an old post but I think I saw something today that makes me really understand what dezcom is saying.

Dezcom, I think what you mean is that let's say someone hires you to create an ultra-thin version of say Baskerville, (providing that Baskerville's EULA allows for modification as long as the font is not resold) and you do this for the client to use on their publication, but they can't sell the font to anyone, and you can't sell the font to anyone either. You may not even be able to use it yourself? But you can do a custom font of it and show pictures of it on your website as an example of your custom font design services.

Is this what you mean?

But now let's say that Baskerville's EULA has a clause in it that says absolutely no modification of any type is allowed (is this really enforceable by law though? I mean really) then you can't do it, or at least you are not supposed to do it. What can they do to you anyway though? I'll bet you couldn't really be sued, right?

hrant's picture

This is one area that I personally am not a font protectionist: as long as a font remains internal to the licensor(s) I recommend freely ignoring such no-mod clauses. HOWEVER: If the modified font ever leaks out you must pay for that bigtime.

hhp

PabloImpallari's picture

> hires you to create an ultra-thin version of say Baskerville
In this particular case, you can do you own Baskerville (1757, now in Public Domain) from old specimens.

.00's picture

But now let's say that Baskerville's EULA has a clause in it that says absolutely no modification of any type is allowed (is this really enforceable by law though? I mean really) then you can't do it, or at least you are not supposed to do it. What can they do to you anyway though? I'll bet you couldn't really be sued, right?

You could always draw it from scratch to harmonize with the existing design.

And don't be so sure legal action cannot be successfully taken against infringers of EULAs.

oldnick's picture

My commercial and freeware EULAs both allow modifications for personal or internal use within a company, but specifically prohibit selling the modified fonts. In such instances as outlined in the subject of the thread, the only legal and ethical thing to do is have the client buy an appropriate license for his/her/its own internal usage, then have said client pay the designer for his services to modify the font.

oldnick's picture

I'll bet you couldn't really be sued, right?

U.S. courts have determined that click-through agreements carry the same weight as standard contracts; consequently, yes—if you violate the EULA, you can be sued, and you won't have a legal leg to stand on. Whether or not the injured party thinks the benefits of filing suit outweigh the costs is another matter.

.00's picture

And now Mr Fontdesigner2, you are on everyone's radar as a potential EULA violator.

Welcome to Typophile!

fontdesigner2's picture

So if a client asks you guys to take a font they like and make it thinner or italic or whatever style you can think of, but that font's EULA doesn't allow modifications of any kind, do you do it?

@J.Montalbano - I guess you're saying that if you draw your own version of it from scratch that's different from taking their font and using their control points, kerning and other font data, and using a filter in FontLab or whatever software does this the best to create a new style from that font. That makes perfect sense, but even if you draw it from scratch, can they claim that you still stole their design and sue you for it, even if you are only licensing the font to that one client and it never leaves their office or yours? BTW I am only wondering in case a client asks me to do this for them, not because I am looking to do it. I think in my situation, I could talk the client into choosing a different font to modify that does have a EULA that allows for modification. I am terrified of breaking the law.

fontdesigner2's picture

@oldnick - I didn't realize that you could really be sued for something like that. But I guess I was thinking of say a painting or illustration and not a font which is software with font data that is protected. I always thought that if you changed someone else's work say at least 30 percent (isn't there a copyright law that states an exact percentage) it became a new work that belonged to you. Then again there's a gray area there and fonts are different because they are software and the data that they contain is also protected.

fontdesigner2's picture

@hrant: "HOWEVER: If the modified font ever leaks out you must pay for that bigtime."

Holy smokes. Okay now I'm scared of that situation.

I thought of one solution, you could always contact the people who license the font you want to modify before you start, and ask their permission. Worst case scenario they say no.

hrant's picture

{Pre-empting a possible destructive deletion.}

But now let's say that Baskerville's EULA has a clause in it that says absolutely no modification of any type is allowed (is this really enforceable by law though? I mean really) then you can't do it, or at least you are not supposed to do it. What can they do to you anyway though? I'll bet you couldn't really be sued, right?

You could always draw it from scratch to harmonize with the existing design.

And don't be so sure legal action cannot be successfully taken against infringers of EULAs.

{End of pre-emption.}

James, what kind of people would waste time stalking Ryan on the off chance they can catch him red-handed violating their no-mod clause, and then drag him to court? To me all that stuff (and maybe your post too?) is just scare tactics. And fear actually doesn't do well in the long term, and doesn't do well on Typophile from what I've seen. BTW, Hoefler and Licko were two font designers who used to be very gung-ho about suing people, but they ended up giving up. Bruisable egos do not make for good business.

Ryan, you've actually nicely alluded to an interesting paradox: modifying a font is (usually) illegal, but making your own copy of a font design is not! At least not in the US. The thing is, do you think a font house would rather sell a font to somebody who will modify it, or not only not sell the font but have a no-strings-attached (and probably free) clone of it floating around! :-/

To me it's all about treating people with reasonableness, and taking personal responsibility, instead of using lawyers to manipulate people's emotions or riding rough-shod over people's reasonable expectations.

BTW, even though I personally do not respect no-mod clauses, I don't take on commissions that involve violating that clause, and this is because: I don't feel like I can guarantee my own "no leaks" clause; and the client could one day decide to incriminate me. However I do try to encourage others to not fall for scare tactics, and any fonts I license myself I feel free to modify as it suits me (while making sure my files are secure). A sort-of-related example: when making Trajic notRoman* I took the liberty of directly using Adobe Trajan's outlines, but to every one of the dozens of people who over the years contacted me to purchase it, I said No.

* http://themicrofoundry.com/ss_trajic.html

> Worst case scenario they say no.

Best case scenario: tell them you refuse to buy their fonts because of the no-mod clause, and even though you know it's just a scare tactic. Communicate clearly that you are not consumerist livestock.

hhp

.00's picture

James, what kind of people would waste time stalking Ryan on the off chance they can catch him red-handed violating their no-mod clause, and then drag him to court? To me all that stuff (and maybe your post too?) is just scare tactics. And fear actually doesn't do well in the long term, and doesn't do well on Typophile from what I've seen. BTW, Hoefler and Licko were two font designers who used to be very gung-ho about suing people, but they ended up giving up. Bruisable egos do not make for good business.

Why do you take everything so seriously?

hrant's picture

{Pre-empting a possible destructive deletion.}

James, what kind of people would waste time stalking Ryan on the off chance they can catch him red-handed violating their no-mod clause, and then drag him to court? To me all that stuff (and maybe your post too?) is just scare tactics. And fear actually doesn't do well in the long term, and doesn't do well on Typophile from what I've seen. BTW, Hoefler and Licko were two font designers who used to be very gung-ho about suing people, but they ended up giving up. Bruisable egos do not make for good business.

Why do you take everything so seriously?

{End of pre-emption.}

Sorry. I know I'm no good at having fun.

hhp

.00's picture

So if a client asks you guys to take a font they like and make it thinner or italic or whatever style you can think of, but that font's EULA doesn't allow modifications of any kind, do you do it?

No. I don't. I tell them to contact the original designer for the mods. If they get permission from the original designer to have the mods done by someone like me then I will consider taking the job. I have to say that this type of work might have been more attractive to me earlier in my career, but I tend to stay away from it now.

oldnick's picture

One more time: U.S. courts have determined that software click-through "Agrees" are enforceable contracts. When you buy a font, you agree to accept the terms of the EULA, period. If you violate the terms, you can be sued; however, as Hrant pointed out, it's not likely you will be sued. Winning the MegaMillions jackpot isn't likely, either, but it happens from time to time.

dezcom's picture

There is a big difference between the search for honesty and finding out how not to get caught. Trip wires may be eluded--sometimes.

hrant's picture

I never play the lottery either.
You Can't Save Yourself The Aggravation If You Play.™

hhp

blokland's picture

Hrant: ‘To me it's all about treating people with reasonableness, and taking personal responsibility, instead of using lawyers to manipulate people's emotions or riding rough-shod over people's reasonable expectations.

To me it is all about respecting the EULA’s that go with fonts. It does not matter whether the end user (or you) consider certain limitations reasonable or not. If one does not agree with the EULA, one should not purchase the font in question and buy one which comes with a more suitable license from another foundry.

People in the font business should by definition completely respect the conditions defined by the rightful owner(s) of font data and design, even if the latter part is not protected by law in certain countries.

This forum is public and in my opinion one really has to think twice before stating that to a certain extent and under certain conditions end users or third parties are basically allowed to infringe EULA’s.

FEB

hrant's picture

Thinking is my middle name. And I've held this position, in public, for over a decade.

It's not about a lack of respect for type designers (it's significant here that I am one). In a way it's about respecting the fact that no type design is created in a vacuum; that all type designs belong, in at least a small way (and sometimes in a big way) to society.

And for the record, the no-mod clause is the only clause I have a problem with.

hhp

hrant's picture

To further clarify my position, let me point to a very recent thread:
http://typophile.com/node/49909#comment-500077
I worked in the foreground and background (with multiple parties) to try to educate people concerning ethical (not the same as legal) behavior concerning font modification.

hhp

John Hudson's picture

I've yet to encounter a no-modification clause that wasn't negotiable. Sometimes the original designers want to make the modifications personally, sometimes they want to charge a supplemental fee for this additional permission, sometimes they just give permission. I've never encountered a designer who simply said 'No' when asked about modifications.

I don't see anything unreasonable about a clause that obliges people to contact the original designer if they want to have a modified version of a font, and it is indeed about lack of respect for the original designer if one just goes ahead without permission.

dezcom's picture

Some designers have the clause in just so that they know who made modifications to their type. It is nothing sinister.

hrant's picture

I feel it's a lack of respect to put in a no-mod clause. But I certainly grasp that it makes business sense, and that's not a bad excuse.

hhp

dezcom's picture

People who respect the type designer would call them and ask. People who do NOT respect the type designer therefore need to be told their actions are not permitted, sadly, ruin the whole respect thing for everyone else.

fontdesigner2's picture

John Hudson makes a great point. "sometimes they want to charge a supplemental fee for this additional permission."

And I think that if the client is adamant about using that particular font that has a no mod clause attached to it, they will have to pay the original designer this supplemental fee. If you explain to the client the legal implications of not doing so, they should understand, especially if they have respect for your expertise.

hrant's picture

As long as such expertise covers an awareness of the issue, and anybody choosing a font for a client discloses potential no-mod clause complications before purchase. It's exactly the sort of legal small-print that decent people unavoidably overlook all the time, only to become entrapped later on.

I think fewer foundries would put a no-mod clause if more potential customers actually read their EULA...

hhp

Thomas Phinney's picture

By and large, people are reasonable.

Last year I encountered a situation where a font was being used for headings and subheads in a project that was very special to me. I was really unhappy with the spacing (and kerning) of the font, and thought it could be fixed. I volunteered to do so, contacted the designer and copyright holder of the font, and they were quite amenable to me going off and doing my thing. If I recall correctly, I licensed a copy of the font to have it to work with, and delivered my modified font to both the user and back to the designer.

Now, it was *way* more work than made any sense, but I achieved what I wanted.

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