Creating and Selling a Revival Font, Ethically and Legally

Ryan Maelhorn's picture

With all the happenings around here involving the ripping off of other peoples work and questions about where that line may or may not be drawn; I thought it made sense to simply ask the house. What are the best practices for purposefully recreating a font from the past?

Hopefully the answer would involve the definition of past being anywhere from 5,000 years to 5 months. It should take the issue of Public domain into account, as well as gaining permission from anyone who requires it, and what one can possibly do if they are refused such permission.

hrant's picture

To avoid being boring I'll start with a "fringe" opinion of mine on this topic: I don't think the person being dead automatically makes it OK; there's something inherently stinky about making any revival.

hhp

riccard0's picture

Legally, in Europe: 70 years after original author’s dead.

Ryan Maelhorn's picture

I believe the date is 1923 in the U.S. currently. However the Walt Disney company keeps fighting to push that back to protect Mickey.

I also do not believe that revivals are stinky, though I respect that point of view. The thing is, despite how some may feel, revivals make up so much of what type design is and had been about. Looked at from the long view, it is like a Symphony; one fugue or counterpart after another. Everything plays off of everything else. Though some would hate me for saying it, I really think the idea of copying is kind of built-in to type design. Erik Speikerman once said fleetingly, as he says everything, that 95% of all fonts have to be the same, or else they would be illegible.

hrant's picture

But that's copyright, and you can't copyright a font design in the US anyway.

BTW Riccardo, can't a person have a heir/estate that inherits the protection?

hhp

Nick Shinn's picture

If everybody looked the same, we’d get tired of looking at each other.

Ryan Maelhorn's picture

I'm especially interested to hear what Nick has to say on the subject, since I love his Figgans Sans Extra Bold to death. Does Hrant think Figgans Sans Extra Bold is 'stink'? He would be incorrect if he did, IMO. But then again, I'm a Nick Shinn groupie, so...

riccard0's picture

can't a person have a heir/estate that inherits the protection?

Given my minimal knowledge, I’d say no.
But, as you say, this applies just to copyright, not trademarks or anything else.
Then there’s the specific copyright tied to the means of reproduction (the photo of a painting, for example).
And I don’t know how it works when copyright is granted to a corporation…

5star's picture

In the world of art there are several prominent estates which have inherited copyrights ...Basquiat to name but one.

From the interwebs:

Question: Can You Transfer Copyright Ownership?
Answer: Yes. Like any other property, any or all of the copyright owner's exclusive rights may be transferred. However, the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner or the owner's lawyer or authorized agent. Transfer of rights on a nonexclusive basis does not require a written agreement.

A copyright can also be bequeathed by will.

A copyright is a personal property right, and is subject to the same state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as legal contracts or terms business. Check your relevant state laws and/or consult an attorney.

Most often transfers of copyright are made by contract. The Copyright Office does provide any forms for transfer contracts, you have to provide your own. However, you can make a record the transfer of copyright ownership in the Copyright Office.

http://inventors.about.com/od/copyrights101basicsfaq/f/copyright_trans.htm

n.

hrant's picture

Ryan, I certainly agree that revivals are a normal part of something like type design, and I don't think all of them are stinky. But I'm with people like Unger in thinking it's not what we should ideally be doing. Now Nick, he's one of our most inventive type designers, so I have to think there are economic reasons for somebody like him electing to make a revival - and that's totally OK. I just hope I can avoid that pressure myself, at least in terms of self-initiated retail stuff; when I'm commissioned to make a revival I'm quite unlikely to say "No, I don't want your money." :-)

BTW there are in fact old fonts I'd love to see revived (or revived better). But I just don't see myself doing them (unless it's something exceptional). There's not even enough time in life to make all the original contributions one would like - why waste time reviving?

hhp

Ryan Maelhorn's picture

The 'bigger universe' theory is valid. So also, is the 'better universe' theory.

Ryan Maelhorn's picture

Also... Garamond... Hello??? What are there like several thousand Garamond's in existence now?

Té Rowan's picture

I guess everyone and their dog think that making their own Garamond is a maturity step.

Mark Simonson's picture

You haven't seen my cat's Garamond. What a waste of time.

John Hudson's picture

Ryan, you're missing the point of Erik's comment that 95% of fonts have to be the same in order to be legible, i.e. that the conventional structures of letters in a limited range of styles constitutes the fundamental common architecture. It is the 5% that makes any individual typeface desirable over another and hence constitutes something close to 100% of the value of a font. The value that derives from simply being able to set a text in a font and read it is minimal, i.e, the value that derives from the 95% that the font has in common with other fonts is minimal precisely because any other font supporting the same language set could perform this basic task as well. But that's not typography. As soon as you make a choice to use a particular font instead of another on the basis of its design, you are locating all of the value of that font in that design, in the 5% that makes it different from the other options.

[I've used the percentage you cited Erik as using, but in fact I'd argue that because the conventional structures vary across even common styles the percentage a given font has in common with all other fonts is actually quite a bit lower than 95%.]

Nick Shinn's picture

I’ve done designs in some of the old genres, and, as Hrant suggests, there were economic reasons for that—they were commissions for newspapers, a conservative medium by and large (I have also had newspaper commissions for original types). However, I wouldn’t say those were revivals per se, as I wasn’t reinterpreting a specific font, but rather drawing influences from a genre as a whole.

When I did the Modern Suite revivals (Scotch Modern and Figgins Sans), it was because I had been highly critical of revivals—on Typophile—so I thought I should give it a try, to see what it involved, what the process was like. I don’t intend to do any more revivals.

Rob O. Font's picture

"I guess everyone and their dog think that making their own Garamond is a maturity step."

If every person (ever) interested in type design was confined by this seemingly narrow group view, none of you would be here. (Not an entirely pleasant thought, but true nonetheless).

Té Rowan's picture

Touchy, touchy, Dobby…

Huh? You are making your own Garamond as a maturity step? Really? Who’d’a believed it? Thought you’d passed that and the Helvetica step (and the mooning-the-computer step) yonks ago.

Ryan Maelhorn's picture

Perhaps someone would like to detail how they would like someone to go about reviving one of their fonts. Like it or not, this really is a fairly big part of the world of type design, IMO, and if someone sets out to do such a thing, there should be a clear guide set out for them.

The designer should explicitly state that it is a revival, either in the specimen, or by using the common means of naming the font after the original.

The area of copyright in the US as far as type design seems a bit hazy to say the least, but one would assume that a designer would have to gain permission from the creator if they are still alive, though perhaps not if they sold off the rights.

hrant's picture

I think what makes doing a revival much more OK than good ol' plagiarism is that the design -not the designer- is dead (or better put: dormant). You can't "revive" a font that's still in use. That's like knocking somebody over and doing CPR on him.

hhp

agisaak's picture

You can't "revive" a font that's still in use. That's like knocking somebody over and doing CPR on him.

Wait... So how exactly are people supposed to learn CPR?

André

hrant's picture

You take a course, using dummies. Then you find yourself in the right place at the right time. But remember, if you revive a font and it goes on to commit a typographic crime, you're responsible for that.

hhp

Rob O. Font's picture

CPR for Dummies comes to mind.

But seriously, I think a lot of groundbreaking revivals of families, Garamond, e.g. have launched individual styles into huge and useful classes of fonts, and the designers (and their dogs), who did those revivals, are some of the most notable names of the past two centuries.

Defending those living and dead heroes seems worth mentioning, that's all.

riccard0's picture

And there also is the updating technologies issue.

oldnick's picture

Revivalism is an ancient and estimable art. The revivalist, shaman-like, conjures up the spirits of the past. Roots matter.

Which means: mine the past which is beyond the general type-buying public’s memory, which—I’m guessing—is median age 30 or so. Even pre-grandpa-box, pre-internet, pre-everything-on-demand folks had some good ideas about making type talk in a particular way…

riccard0's picture

pre-grandpa-box, pre-internet, pre-everything-on-demand folks had some good ideas about making type talk

As Frederic Goudy once said: “The old fellows stole all of our best ideas!” :-)

Nick Shinn's picture

…and the designers (and their dogs), who did those revivals, are some of the most notable names of the past two centuries.

They may have been designers, but they were not the designers of those revivals, and in most cases their reputation rests on their original work.

Really David, what’s heroic about copying someone else’s design?

Perhaps, in the early 20th century, it was brave and radical to revive hundreds-of-years-old typefaces, but once that rampart had been breached…

aluminum's picture

If you're asking the question, then you likely know the answer. It's not a specific legal or scientific answer--but you since are concerned about the issue--then you will know when you cross the line. There'll be this twinge in your gut.

If you're looking for the legal answer, the 'safe age' is inversely proportional to the size of the legal staff of the copyright holder.

Rob O. Font's picture

"Really David, what’s heroic about copying someone else’s design?"

"Copy" is not a word that engenders discussion on this topic.

So long.

Té Rowan's picture

Of course, if your Foonly 2000 4×4 typesetter doesn't have a Garamond and you must have it, there is no choice but to ‘port’ one over, na?

Nick Shinn's picture

"Copy" is not a word that engenders discussion on this topic.

Well then, if taking someone else’s design, and acknowledging that person as the author, and giving the revival the same name as the original (or its author) is not copying their design, what is it? (Other than the euphemistic “revival”.) Perhaps following, but not revised or adapting, because the design remains the same.

The revivalist’s execution might well be styled or nuanced in a distinctive manner, perhaps even with new ideas about the relationship between structure and detail, but the underlying design remains the same. Surely this is how the term “design” is understood in most of the plastic arts, as the plan or template which exists prior to the making of the artefact.

It’s not that I don’t recognize the skill and creativity that can go into a redesign, but I don’t believe it is of as high an order as that which goes into original design, or that it should be fêted to the same degree, certainly not as heroic.

To do so is a disservice to type design, and makes it seem bush league in relation to other arts.

You’ve done a lot of revivals David, but for me you will always be first and foremost the designer of Throhand, in particular I recall how impressive it looked when I first saw it in National Geographic.

PabloImpallari's picture

I have a full list of revivals I would love to see!
For example: A new version of what we know today as "Croissant".
The pre-digital design exudes luxury and charm, while the digital versions of today are almost a caricature.

oldnick's picture

Well then, if taking someone else’s design, and acknowledging that person as the author, and giving the revival the same name as the original (or its author) is not copying their design, what is it?

It's pretty much like providing a new arrangement for an old song: the bare bones are there, but the arranger interprets what there according to his or her own tastes. It’s how an old loping pseudo-cowboy song from the 1940s called “Cow Cow Boogie” (“Get along: get hip, little dogie”) gets reinterpreted by Tiny Bradshaw in 1950 as “Train Kept a-Rolling,” which in turn gets reinterpreted by Johnny Burnette and the Rockets in 1956 under the same name, then gets reinterpreted again by the Yardbirds—and, later, Aerosmith—in the 1960s as a steamrolling, pile-driving, balls-out rock anthem.

In all cases, the basic structure is precisely the same, but each arranger crafts a different vision from what went before. In all cases, it ain’t copying…

Nick Shinn's picture

But surely if the basic structure is precisely the same, it is copied.
In a typeface, isn’t the basic structure its design?

The idea that musicians may change the lyrics to a tune and call the song their own is frowned upon, as George Harrison, amongst others, found out.

Speaking of the 1940s, John Jacob Niles wrote a book My Precarious Life in the Public Domain, in which he observed that many people had used his folk-style compositions, assuming they were in the public domain. One of those was “Black is the color of my true love’s hair”; he kept the traditional words but wrote a new tune. Luciano Berio incoporated it into his Folk Songs. Berio called that process transcription—adapting exisiting works was an issue central to his.

I would also note that in music, as you say, the revival is termed an arrangement, not a composition, whereas no such distinction exists in type design. Comparing type with music can only go so far, these things are complex enough in themselves.

**

I can see the merit in David’s reluctance to discuss this further.
Its utility, and the persistence of tradition, are things we all love about type.
Ideally, if anybody thinks type design is small beer, only 5% creative, that’s their problem.
I will adopt this approach in future, and let the type do the talking.
Noblesse oblige.

oldnick's picture

Comparing type with music can only go so far, these things are complex enough in themselves.

As you wish: I am still reasonably confident that my metaphor works if the roots are acknowledged.

The chord progressions—and, to some extent, the melodies—of “He’s So Fine” and “My Sweet Lord” are essentially identical; whether or not George Harrison recognized this fact consciously must remain unsettled, but he was too large a target for the lawyers not to pursue. In the string of songs I mentioned, the chord progression and the hook remain the same, but the first two are quite dissimilar from the rest.

JamesM's picture

> he was too large a target for the lawyers not to pursue

Same thing happens in many other fields. For example any time a movie is a big hit, someone will inevitably sue and claim the original story was written by them and was ripped off by the scriptwriters. Sometimes these lawsuits have merit, sometimes not.

HVB's picture

@Pablo - I agree that a decent version of the "Charles of the Ritz" would be nice, and certainly agree that the very klutzy Croissant isn't it. However, I doubt that there ever were any more characters created than those used in "Charles of the Ritz". As far as I know, that was hand lettered and had many different variations.

- Herb

PabloImpallari's picture

A few more here:

Croissant is just one example. There are tons of stuff like this.

William Berkson's picture

Matthew Carter has said that to him revivals are like a new performance of an old score. The conductor, adding a new interpretation, creates a recording that has value in itself, beyond the original score. To take one of my favorites, Ella Fitzgerald's recording of Gershwin's songs added a lot. In fact, Ira Gershwin I believe said, "I never knew how good we were until I heard Ella sing our songs."

Ella isn't Gershwin, and Leonard Bernstein isn't Beethoven, but their performances are of value in themselves.

A straight copy that attempts just to be accurate is more craft than art, but it is valuable in my view, if what is revived is of value. Because of the changes in technology, I think the effort to be "authentic" is a trap, though, especially for very old types.

I explained my views and my own process reviving Caslon's Pica 2, over at ilovetypography.

paragraph's picture

Charles of the Ritz is beautiful to me, Croissant not so. I cannot resist the music analogy. Here is a rendition of J. S. Bach's chorale No. 53 (St Matthew's Passion). Here is Simon & Garfunkel in Central Park (American Tune).
Copying or borrowing, beautifully done, is not offensive, on the contrary. Bach in turn borrowed the tune from Hans Leo Hassler's Mein G'müt ist mir verwirret (1601?). They are all independently precious. So with type. Stempel Garamond is not the same as ITC Garamond, or Garamond 3, or Simoncini Garamond. I do not mind that they all exist, they are all valuable.

Té Rowan's picture

And very occasionally, the rework can add a new dimension.

In the 1990s or so, this 32-note ditty, composed by (the late) Jón Múli Árnason, was used by RUV for the "Deaths and Funerals" announces. Later on, Sigur Rós got to rework it for the movie Englar alheimsins (Angels of the Universe).
http://www.youtube.com/watch?v=UZivyeW3drU

Nick Shinn's picture

Bill, I would be interested to see if your opinions change after you try your hand at designing something original.

William Berkson's picture

After I've finished, I'll let you know. I value originality, but other things are also valuable to users—often more valuable.

hrant's picture

Providing value to users is one thing, providing value to culture is another.

That said, I don't think "copying" is the right way to think of revivals (except highly literal ones).

hhp

William Berkson's picture

Hrant, I agree with you. In many revivals, there is a lot of creative effort that goes in, as Carter's analogy indicates.

Té Rowan's picture

Not as big an another as you seem to imply, @hrant. Culture is the end result of centuries of see-and-be-seen one-upmanship. And, no, I do not venerate the deities Bheer and Nhascar.

paragraph's picture

I worship Bheer at noon, at sunset I pray to Hwine. To be honest, would I want to do another Garamond or another anything? No. It's a personal choice.

Ryan Maelhorn's picture

So, here's real life example. I want to create a font based on this Harrild & Sons woodcut:

This specimen is from before 1923, so I believe that means copyright has expired for it. I really like this and am seriously planning on recreating a full font from it. My biggest fear is of course after I put in all the work, and start selling it, that someone who still claims ownership of the original wood cuts would take me to court. What steps should I take to revive this font ethically and legally? I don't think Harrild & Sons exist anymore. Should I start contacting everyone with the last name of Harrild in the world? Seriously, I want to go about this in the right way, and would appreciate help on the matter.

oldnick's picture

Your sample is well over a hundred years old; even if the design were patented—which was a common process in the nineteenth century, beginning with George Bruce in 1843—the patent has long since expired. Go fit it…

HVB's picture

In the United States, alphabetic designs cannot be copyrighted but can be patented. Digital implementations may have a copyright, and typeface/font names may be trademarked.
Code of Federal Regulations, Ch 37, Sec. 202.1(e); Eltra Corp. vs. Ringer
{I am not an attorney: Citation is from Wickipedia}

What some in this thread have complained about are re-creations of existing digitized typefaces. Unless it's already been done, which is possible, this specimen does not fit into that category.

- Herb

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