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\title{COMMENTARY\\ Typeface Protection}
\author{Charles Bigelow}
\begin{document}
\maketitle
\section{Preamble}
The main question of typeface protection is: Is there anything there worth
protecting? To that the answer must certainly be: Yes. Typeface designs are
a form of artistic and intellectual property. To understand this better, it
is helpful to look at who designs type, and what the task requires.
\section{Who Makes Type Designs?}
Like other artistic forms, type is created by skilled artisans. They may be
called type designers, lettering artists, punch-cutters, calligraphers, or
related terms, depending on the milieu in which the designer works and the
technology used for making the designs or for producing the type.
Type designer and lettering artist are self-explanatory terms.
Punch-cutter refers to the traditional craft of cutting the master image of a
typographic letter at the actual size on a blank of steel that is then used to
make the matrix from which metal type is cast. Punch-cutting is an obsolete
though not quite extinct craft. Seeking a link to the tradition, modern
makers of digital type sometimes use the anachronistic term digital
punch-cutter. Calligrapher means literally one who makes beautiful marks. The
particular marks are usually hand-written letters, though calligraphers may
design type, and type designers may do calligraphy.
It usually takes about seven years of study and practice to become a
competent type designer. This seems to be true whether one has a Phd.\ in
computer science, an art-school diploma, or no academic degree. The skill is
acquired through study of the visual forms and practice in making them. As
with geometry, there is no royal road.
The designing of a typeface can require several months to several years.
A family of typefaces of four different styles, say roman, italic, bold roman,
and bold italic, is a major investment of time and effort. Most type
designers work as individuals. A few work in partnership (Times Roman(R),
Helvetica(R), and Lucida(R) were all, in different ways, the result of design
collaboration.) In Japan, the large character sets required for a typeface
containing Kanji, Katakana, and Hirakana induce designers to work in teams of
several people.
Although comparisons with other media can only be approximate, a typeface
family is an accomplishment on the order of a novel, a feature film
screenplay, a computer language design and implementation, a major musical
composition, a monumental sculpture, or other artistic or technical endeavors
that consume a year or more of intensive creative effort. These other
creative activities can be protected by copyright or other forms of
intellectual property protection. It is reasonable to protect typefaces in
the same way.
\section{The Problem of Plagiarism}
A lack of protection for typeface designs leads to plagiarism, piracy, and
related deplorable activities. They are deplorable because they harm a broad
range of people beyond the original designers of the type. First, most type
plagiarisms are badly done. The plagiarists do not understand the nature of
the designs they are imitating, are unwiling to spend the necessary time and
effort to do good work, and consequently botch the job. They then try to fob
off their junk on unsuspecting users (authors, editors, and readers). Without
copyright, the original designer cannot require the reproducer of a type to do
a good job of reproduction. Hence, type quality is degraded by unauthorized
copying.
Secondly, without protection, designs may be freely imitated; the
plagiarist robs the original designer of financial compensation for the work.
This discourages creative designers from entering and working in the field.
As the needs of typography change (on-line documents and laser printing are
examples of technical and conceptual changes) new kinds of typefaces are
required. Creative design in response to such needs cannot flourish without
some kind of encouragement for the creators. In a capitalist society, the
common method is property rights and profit. In a socialist (or, in the past,
royalist) society, the state itself might employ type artists. France, as a
monarchy and as a republic has had occasional state sponsorship of typeface
design over the past 400~years. The Soviet Union has sponsored the design of
new typefaces, not only in the Cyrillic alphabet, but also in the other exotic
scripts used by various national groups in the Soviet Union.
Those who would justify plagiarism often claim that the type artists do
not usually receive a fair share of royalties anyway, since they have usually
sold their designs to some large, exploitive corporation. It is true that
type designers, like many artists, are often exploited by their publishers,
but plagiarism exacerbates the problem. Plagiarism deprives the designer of
decent revenues because it diverts profits to those who merely copied the
designs. Plagiarism gives the manufacturer yet another excuse to reduce the
basic royalty or other fee paid for typeface designs; the theme song is that
the market determines the value of the design and cheap rip-offs debase the
market value of a face. For those interested in the economic effects of
piracy, it is clear that plagiarism of type designs ultimately hurts
individual artists far more than it hurts impersonal corporations.
\section{Kinds of Protection for Type}
There are five main forms of protection for typefaces:
\begin{enumerate}
\item Trademark
\item Copyright
\item Patent
\item Trade Secret
\item Ethics
\end{enumerate}
\begin{description}
\item[Trademark.] A trademark protects the name of a typeface. In the U.S.,
most trademarks are registered with the U.S. Patent and Trademark Office.
The R in a circle (R) after a trademark or tradename indicates U.S.
registration. The similarly placed TM indicates that a trademark is claimed,
even if not yet officially registered. However, a trademark may be achieved
through use and practice, even without registration. Owners of trademarks
maintain ownership by use of the trademark and by litigation to prevent
infringement or unauthorized use of the trademark by others.
As a few examples of registered typeface trademarks, there are Times
Roman (U.S. registration~417,439, October~30, 1945 to Eltra Corporation, now
part of Allied); Helvetica (U.S. Registration~825,989, March~21, 1967, also
to Eltra-Allied), and Lucida (U.S. reg.~1,314,574 to Bigelow \& Holmes). Most
countries offer trademark registration and protection, and it is common for a
typeface name to be registered in many countries. In some cases the
registrant may be different than the originator. For example, The Times New
Roman (Times Roman) was originally produced by the English Monotype
Corporation. In England and Europe, most typographers consider the design to
belong to Monotype but the trademark was registered by Linotype (Eltra-Allied)
in the U.S., as noted above.
Trademark protection does not protect the design, only the name.
Therefore, a plagiarism of a design is usually christened with a pseudonym
that in some way resembles or suggests the original trademark, without
actually infringing on it. Resemblance without infringement can be a fine
distinction.
Some pseudonyms for Times Roman are: English Times, London, Press Roman,
Tms Rmn. Some for Helvetica are Helios, Geneva, Megaron, Triumvirate. So
far, there seem to be none for Lucida. There are generic typeface
classifications used by typographers and type historians to discuss styles,
trends, and categories of design. Occasionally these apparently innocuous
classification systems are employed by plagiarists to devise generic
pseudonyms, such as Swiss~721 for Helvetica, and Dutch~801 for Times Roman.
It is not certain whether this usage of a generic classification is more for
clarification or for obfuscation. In general, the proper tradename is a
better indicator of identity, quality, and provenience in typefaces than a
generic name. Some people believe that the same is true for other commodities
such as wine, where taste is important.
A trademark usually consists of both a proprietary and a generic part.
For example, in the name Lucida Bold Italic, Lucida is the proprietary
trademark part and Bold Italic is the generic part. The generic word type is
usually understood to be a part of the name, e.g.\ Lucida Bold Italic type.
Sometimes a firm will append its name or a trademarked abbreviation of it to
the typeface name, to achieve a greater degree of proprietary content, e.g.\
B\&H Lucida Bold Italic.
A related matter is the use of the name of a type's designer. A firm
that ethically licenses a typeface will often cite the name of the designer
--~e.g.\ Stanley Morison (with Victor Lardent) for Times Roman, Max Miedinger
(with Edouard Hoffmann) for Helvetica, Charles Bigelow and Kris Holmes for
Lucida. Although a person's name is not usually a registered trademark, there
are common law restrictions on its use. The marketing of plagiarized type
designs generally omits the names of the designers.
Although Trademark is an incomplete kind of protection, it is used
effectively (within its limitations) to prevent the theft of type names.
Certain traditional typeface names, usually the surnames of illustrious
designers like Garamond, Caslon, Baskerville, Bodoni, and others have become
generic names in the public domain. Trademark protection of such names
requires the addition of some proprietary word(s), as with these hypothetical
creations, Acme New Garamond, or Typoluxe Meta-Baskerville.
\item[Copyright.] Copyright of typefaces can be divided into two parts:
copyright of the design itself; and copyright of the font in which the design
is implemented. In the U.S., typeface designs are currently not covered by
copyright. This is a result of reluctance by the copyright office to deal
with a complex field; by lobbying against copyright by certain manufacturers
whose profits were based on typeface plagiarism; and by a reluctance of
congress to deal with the complex issue in the recent revision of the
copyright law.
The reluctance of Americans to press for typeface copyright may have been
influenced by a feeling that typeface plagiarism was good for U.S. high-tech
businesses who were inventing new technologies for printing, and plagiarizing
types of foreign origin (Europe and England). If the situation becomes
reversed, and foreign competition (from Japan, Taiwan, and Korea) threatens to
overcome American technological superiority in the laser printer industry,
then American firms may do an about-face and seek the protection of typeface
copyright to help protect the domestic printer industry. Such a trend may
already be seen in the licensing of typeface trademarks by Adobe, Hewlett
Packard, IBM, Imagen, and Xerox in the U.S. laser printer industry.
In Germany, where typeface design has always been a significant part of
the cultural heritage, and where typefounding has remained an important
business, there are more than one kind of copyright-like protections for
typefaces. Certain long-standing industrial design protection laws have been
used to protect typeface designs in litigation over royalties and plagiarisms.
Further, there is a recent law, the so-called Schriftzeichengesetz enacted in
1981, that specifically protects typeface designs. New designs are
registered, as is done with copyright in most countries. This law only
protects new, original designs. It is available to non-German designers and
firms. Therefore, some type firms and designers routinely copyright new
designs in West Germany. This gives a degree of protection for products
marketed in Germany. Since multinational corporations may find it cheaper to
license a design for world-wide use rather than deal with a special case in
one country, the German law does encourage licensing on a broader scale than
would initially seem to be the case.
France, like Germany, has ratified an international treaty for protection
of typefaces. This 1973 Vienna treaty will become international law when four
nations ratify it. So far, only France and West Germany have done so, and
thus a design must be protected separately in each country. Even when the
treaty becomes law, it will take effect only in those countries that have
ratified it. The treaty was principally the work of the late Charles Peignot,
a French typefounder, and John Dreyfus, an English typographer and typographic
scholar. Presently, typefaces may be registered for protection in France
under a 19th century industrial design protection law.
In the U.S., there continues to be some movement for typeface design
protection. A proposed bill that would protect the designs of useful
articles, like type, has been in committee for several years. It seems to be
going nowhere.
Digital (as opposed to analog) fonts may be protected by copyright of
digital data and of computer programs. It has been established that computer
software is copyrightable. Therefore, software that embodies a typeface,
e.g.\ a digital font, is presumably also protected. There is some objection
to this kind of copyright, on the grounds that the ultimate output of the
program or the result of the data (i.e.\ a typeface design) is not
copyrightable. However, the current belief expressed by the National
Commission on New Technological Use of Copyrighted Works is that software is
copyrightable even if its function is to produce ultimately a
non-copyrightable work. Hence, typefaces produced by Metafont or
PostScript(R), two computer languages which represent fonts as programs, are
presumably copyrightable. Typefaces represented as bit-map data, run-length
codes, spline outlines, and other digital data formats, may also be
copyrightable. Some firms do copyright digital fonts as digital data.
Note that the designs themselves are still not protected in the U.S. A
plagiarist could print out large sized letters (say, one per page) on an Apple
LaserWriter, using a copyrighted PostScript digital font, and then redigitize
those letters by using a scanner or a font digitizing program and thus produce
a new digital font without having copied the program or digital data, and thus
without infringing the copyright on the font. The quality of the imitation
font would probably be awful, but it wouldn't violate copyright. Of course,
the plagiarist would need to rename the font to evade trademark infringement.
(As I write these words, I have the guilty feeling that I have just provided a
recipe for type rip-off, but others have obviously thought of just such a
scheme --~John Dvorak has even proposed something like it in one of his
columns.)
\item[Design Patent.] The designs of typefaces may be patented in the U.S.
under existing design patent law. Many designs are patented, but type
designers generally don't like the patent process because it is slow,
expensive, and uncertain. Nevertheless, some type do get patented, and it is
a form of potential protection. Note that this is Design Patent --~the
typeface doesn't have to be a gizmo that does something, it merely has to be
unlike any previous typeface. The drawback here is that most attorneys and
judges are not aware that there are more than two or three typefaces: say,
handwriting, printing, and maybe blackletter. Therefore, litigating against
infringement is an educational as well as a legal process. It is easy to see
that typeface theft is more subtle than knocking over a liquor store; it may
not be illegal and the returns may be greater.
Protections like design patent are available in many other countries, but
there is not an international standard (to my knowledge) so the situation must
be examined on a country by country basis.
\item[Invention Patent.] Methods of rendering typefaces can be patented as
mechanical or electronic inventions. For example, the old hot-metal Linotype
machinery was protected by various patents, as was the IBM Selectric
typewriter and type ball. IBM neglected to trademark the typeface names like
Courier and Prestige, so once the patents had elapsed, the names gradually
fell into the public domain without IBM doing anything about it (at the time,
and for a dozen years or so, IBM was distracted by a major U.S. anti-trust
suit). Most students of the type protection field believe that those names
are probably unprotectable by now, though IBM could still presumably make a
try for it if sufficiently motivated.
There is currently a noteworthy development regarding a patent for
outline representation of digital type as arcs and vectors, with special
hardware for decoding into rasters. This patent (U.S.~4,029,947, June~14,
1977; reissue~30,679, July~14, 1981) is usually called the Evans \& Caswell
patent, after its inventors. It was originally assigned to Rockwell, and in
1982, Rockwell sued Allied Linotype for infringement. Allied settled out of
court, having paid an amount rumored to be in the millions. Rockwell sold the
patent, along with other typographic technology, to Information Internation,
Inc.\ (III) which then sued Compugraphic for infringement. According to the
Seybold Report, a respected typographic industry journal, Compugraphic
recently settled out of court for \$5~million. Although many experts believe
the patent to be invalid because of several prior inventions similar in
concept, it nevertheless seems to be a money-maker in corporate litigation.
The Seybold Report has speculated on which firms III would litigate against
next. Among the candidates suggested by the Seybolds was Apple for its
LaserWriter, which uses outline fonts. Since the entire laser printer
industry and the typesetting industry is moving toward outline font
representation, Apple is certainly not alone. The Seybolds further speculate
on whether the difference between character-by-character CRT typesetting and
raster-scan laser typesetting and printing would be legally significant in
such as case. Ultimately, some firm will hold out for a court judgement, and
the matter will be decided.
\item[Trade Secret.] Given that typeface designs have relatively little
copyright protection in the U.S., they are often handled as trade secrets.
The secret must apply to the digital data or programs only, because the images
themselves are ultimately revealed to the public as printed forms. It is much
more difficult to reconstruct the formula of Coca-Cola from its taste than it
is to reconstruct the design of Helvetica from its look on the page. The
exact bitmap or spline outline of a digital font is usually not
reconstructable from the printed image, although CRT screen fonts at usual
resolutions (60--120 dots per inch) may be reconstructed by patient counting
and mapping of bits off a screen display. Typeface licenses often contain
stipulations that the digital data will be encrypted and confidential. Just as
a firm will protect the secret of a soft drink recipe, so a type firm will
protect the exact nature of its digital data.
\item[Ethics.] Some typographers are motivated by higher principles than
greed, profit, expediency, and personal interest. Idealists enthused with
concepts of ethical behavior and a vision of typography as a noble art may
find it distasteful to use plagiarized types. Some graphic designers insist
on using typefaces with bona-fide trademarks, both to ensure that the type
will be of high quality, and to encourage creativity and ethics in the
profession. A consequence of plagiarism that is sometimes overlooked is a
general erosion of ethics in an industry. If it is okay to steal typeface
designs, then it may be okay to purloin other kinds of data, to falsify one's
resume, to misrepresent a product, and so forth. Most professional design
organizations attempt to promote ethical standards of professional behavior,
and personal standards may extend to avoidance of plagiarisms.
\end{description}
The Association Typographique Internationale (ATypI) is an international
organization of type designers, type manufacturers, and letterform educators.
Its purpose is to promote ethical behavior in the industry, advancement of
typographic education, communication among designers, and other lofty aims.
Members of ATypI agree to abide by a moral code that restricts plagiarism and
other forms of depraved behavior (pertaining to typography). These are noble
goals, but some members (especially corporate members) of ATypI, confronted
with the pressures and opportunities of commercial reality, nevertheless
plagiarize typefaces of fellow members, the moral code notwithstanding. Since
ATypI is a voluntary organization, there is very little that can be done about
most such plagiarism. Some years back, a world-famous type designer resigned
from the ATypI Board of Directors in protest over the organization's flaccid
attitude toward the plagiarists among its ranks. He has since agreed to sit
on the board again, but criticism of the organization's inability to prevent
type rip-offs by its own members, not to mention by non-members, continues to
be heard. Moderates in ATypI believe that a few morals are better than none.
It is not clear whether their philosophical stance derives from Plato, Hobbes,
or Rousseau.
Given the general attitude of the public toward copyrighted video and
software, it is doubtful that ethical considerations will hinder most
end-users' attitude to plagiarized type fonts. A desire to have the
fashionable label or trademark may be a greater motivation toward the use of
bona-fide fonts than an ethical consideration.
\section{Further Reading}
The State of the Art in Typeface Design Protection, Edward Gottschall, Visible
Language, Vol.~XIX, No.~1, 1985. (A special issue on The Computer and the
Hand in Type Design -- proceedings of a conference held at Stanford University
in August, 1983).
Der Schutz Typographischer Schriftzeichen, by Guenter Kelbel. Carl Heymans
Verlag KG, Cologne, 1984. (A learned account in juridical German prose, of
the significance of the Vienna Treaty of~1973 and the West German
Schriftzeichengesetz of~1981).
\section{Disclaimer}
These notes were originally prepared at the request of Brian Reid for informal
distribution. They are based on the author's review of available literature
on the subject of typeface protection, and on personal experience in
registering types for trademark, copyright, and patent. However, they are not
legal advice. If one is contemplating protecting or plagiarizing a typeface,
and seeks legal opinion, it is advisable to consult an attorney. The term
plagiarize and words derived from it are used here in its dictionary sense of
to take and use as one's own the ideas of another and does not mean that the
practice of typeface plagiarism is illegal; that is determined by the laws of
a particular country.
Charles Bigelow is a professor of digital typography at Stanford University
and a professional designer of original digital typefaces for electronic
printers and computer workstations. Mr.\ Bigelow and his partner Kris Holmes
designed the Lucida typeface family which is now widely used on various laser
printers.
\end{document}