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A lawyer's guide While our fonts are protected by New Zealand copyright, we believe our American colleagues are getting a raw deal. The US Copyright Office still officially refuses to accord protection for font designs. Below are our legal arguments for copyright protection.


Section B: Moral rights should be recognized


A. The inapplicability of the Copyright Office's current guidelines and on precedent surrounding copyright for typefaces

Link to TypeRight
- the organization set up to educate and to lobby the Copyright Office for design copyright. Visit their Features section for more articles on font copyright.

Connect to Émigré's excellent font FAQ

Connect to Three Islands Press' commentary on ethics

1 Although Eltra Corp. v. Ringer is the highest authority in the United States surrounding typeface copyright, it can be argued that its applicability is questionable in light of other 'utilitarian' judgments in recent years. An examination of these judgments can demonstrate that typeface designs no longer fit into the criteria of being utilitarian, or that they lack creative or artistic aspects in addition to their function.

2 The context in which Eltra took place is also questionable, with both Court of Appeals and Supreme Court judgments not reflecting the developmental and artistic process of the creation of type designs. Artistic and decorative designs of recent years, thanks to the democratization of type production, demonstrate clearly - even to those outside the industry - the creativity and effort involved.

3 Eltra also looked at the fact that copyright for typeface designs would be anticompetitive. Intellectual property law, including the United States' obligations under the Uruguay Round and the Berne Convention, has changed. While domestic antitrust law is still important, and has been relied on in a number of cases involving type companies, it is hardly sufficient to deal with the IP issues involved.

4 Some products are inherently similar because of their function, external factors, or their nature (they are only capable of being expressed in certain ways). Only the idea - not copyrightable - has in fact been taken. This is what the Copyright Office has driven at in its statements. However, these statements have been based more on a misunderstanding of the industry and on outdated precedent, which would probably not stand up in a new case. The recent SWFTE suit was settled out of court - which did no favours for the industry wanting some ratio decidendi from the Supreme Court, but which begins to hint at the fact that Eltra is beginning to look shaky.

5 The law has fallen down often in cases where the objective test has shown objective similarity, even when it may be unavoidable. A Windows software program may look the same as a competitor's because the appearance is dictated by the Windows environment, so Judge Learned Hand's "ordinary observer" test in Peter Pan Fabrics would be redundant. It is agreed that a monopoly should not be granted on an idea alone, but typeface designs are neither "just functional" or "just represent an idea". In their inquiry, the courts must take into account the nature of the product. In Baker v. Selden, the expression was so necessarily incidental to the idea that it could not be protected.
   The courts should filter out from the realm of protection those elements dictated by efficiency, function or nature as suggested in Altai. When this is done, what we are left with is artistic expression. Arguably, this exists in typeface design. Function and efficiency are not adjectives in type designers' minds when creating a new design.

6 It is argued that "utilitarian" objects should be granted less protection in the courts. It would be wrong to protect the whole idea of a computer program organization as in Whelan, as a competing product would probably, by nature, require the same or a similar organization. A computer menu hierarchy in Lotus Development Corp. is probably not so much a method of operation but something so utilitarian and dictated by necessity. Necessity, in this case, is the familiarity of users with Windows program. Alternatively, the court could state that the Lotus 1-2-3 menu hierarchy is trite and language cannot be copyrighted. Or the play and stop buttons on a VCR. These are how the Courts of Appeal and the Supreme Court have defined utilitarian in most recent years. Parallels with typeface design cannot be drawn because of legitimate artistic expression that are inherent in their creation.

7 Less "utilitarian" objects - to use the American functional test is misleading as many objects are both capable of varying expression and function (an Alessi teapot illustrates this) - demand greater protection. These objects are those capable of different expression.

8 It is further submitted that the descriptions of the process have done little to enhance the artistic aspects of typeface design. In a modern context, in most cases, the decisions about the utilitarian function rank below the meaning or the expression of the typeface.

9 Therefore, it is wrong for the Copyright Revision Act of 1976 to not give protection for typefaces under US federal law, by the nature of the product. Industry opinions and the moral right (section B) should also guide the Copyright Office and the courts on this matter.

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