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Are fonts programs? Twardoch versus Crossland

In a lively discussion in May 2015, Adam Twardoch defends the position that fonts are programs, while Dave Crossland doubts it. The truth is that fonts are not programs. I quote passages from their arguments:

Adam Twardoch (MyFonts, ex-FontShop): The general legal assumption (which the other party can challenge, of course) is that digital fonts are computer programs: The type designer uses a font editor to create a computer program, and that process is considered the process of the creation of a work of authorship. The font rasterization engine executes this program snd produces images of characters. Therefore, the digital font is protected just like any other computer program. The digital images the font produces are generally not protected. This method of protection is based on the assumption that the designer places outline points in a creative act and that the individual point placements cannot be automatically inferred from the glyph image. Manually set hinting instructions are slso considered part of the computer program that is protected. In a way, this paradigm of protection assumes that, as a designer, you're using a GUI tool to write a PostScript program by hand. If someone takes your digital outlines and modifies them, the current legal assumption is that it's equivalent to taking the source code of a 3rd party's computer program and modifying it without permission. Computer programs generally enjoy stronger copyright protection than other works, also in Germany. But this paradigm of protection is based on a handful of 20+-years old U.S. court rulings (Adobe vs. SSi), and has not really been verified or challenged in other jurisdiction---so there is just assumption of protection.

Dave Crossland (Google): Adam, I know that Adobe folks have been claiming for years and years that "fonts are programs too" but my understanding of the SSI case is that this claim was never substantiated by that court. Indeed, I think its disingenous to claim fonts (by which we assume SFNT fonts) are computer programs. They may contain computer programs - TT hinting instruction rendering programs, and AAT state machine layout programs - but they are mostly data. (I believe the difference is that programs are executed, while data is used as input to a program. In the LISP family of programming languages, program code is written in a way that the output data of a program's function can itself be executed; and compiler programs process code as a data input, translate it from 'source' form to 'object' form, and output a binary file object that can be executed. There are some non-SFNT based formats, like PostScript Type 3 and METAFONT, which are truly programs. But Type 1, CFF and TTF outlines are not executed, they are parsed as input to rendering systems. Since UFO is XML, UFOs are clearly not programs; and even the .fea files inside them are not, because - like HTML and CSS - they contain markup data that is parsed to the OpenType Layout Engine programs like Harfbuzz.) However, what the SSI case did substantiate was why fonts can be claimed to be subject to artistic copyrights: the assumption that the designer places outline points in a creative act and that the individual point placements cannot be automatically inferred from the glyph image But its important to note that typeface designs themselves - glyph images - and not the Bezier points that express them, are not subject to copyright restrictions in the USA, and probably in many other places. And that Ralph, is the core of the dispute about them willfully infringing your copyright. The museum is talking about the typeface design, but you have deduced that their font data is derived from your font data, and is thus a derivative work under copyright, and they need to settle with you pronto. This 'in principle it could have been original' stuff is cute, because indeed they could have made the design that their fonts displays by hiring a type designer to create new font data of that design, and then they would be legally legitimate. But it seems that this is not what they did! And so they have put themselves in jeopardy. This is exactly the error that SSi made with Adobe's fonts in the famous SSi case Adam refers to. However, unlike SSi, it seems that they were an licensee, and thus bound by your EULA contract. This to me seems like your strongest card to play, because if this is the case, the copyright status of fonts and designs is entirely irrelevant. There was a famous Monotype vs ITC lawsuit in the 1990s that turned on such a contractual obligation by Monotype not to copy designs by ITC. (The lawyer Paul Stack led the case for Monotype that they did not copy the designs exactly, and thus were legitimate, and Michael Twyman was a star witness that testified that they were not exact copies.) However, in Germany there may be a 25 year copyright on typeface designs themselves, in addition to the regular artistic copyright term (life+70 years or whatever) on the font data. The reason the case turned on contract and not copyright is because copyright restrictions don't apply to type in the USA at all.

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Are fonts programs? Twardoch versus Crossland
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Luc Devroye ⦿ School of Computer Science ⦿ McGill University Montreal, Canada H3A 2K6 ⦿ lucdevroye@gmail.com ⦿ http://luc.devroye.org ⦿ http://luc.devroye.org/fonts.html