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Blake Fry

Blake Fry studied law at the University of Kansas (BA, 2001) and at Lewis&Clark Law School (JD, 2009). He wrote Why typefaces proliferate without copyright protection. This is a thoroughly interesting paper. The text below are the author's conclusions.

This paper has demonstrated how several mechanisms collaborate to create an environment in which an abundance of typefaces are designed, even though typefaces in the United States cannot now, or maybe ever, be copyrighted. Typefaces are functional objects, necessary for literate societies who print words on paper or display them on screens. As such, some typefaces must exist. And as long as some exist, the type design industry will be subject to the mechanisms that allow it to be innovative. Technology is one of those mechanisms. Because different technologies have limitations that affect typefaces, new designs, compensating for the limitations, have to be made when a technology is introduced. New technologies also allow typefaces to have features or benefits that were not previously possible. The market demands, and is willing to pay for, access to these features and benefits. Technology has also lead to the digitization of the type design process. This has caused an explosion in the number of type designers, and typeface designs. Though digitization of the industry has decreased the quality of designs in some cases, it has just as often increased quality.

Because the type design industry is relatively small and close-knit, norms within the industry are effective at mitigating plagiarism within it. This phenomenon comports both with general theories of norms, and with observations from other industries in intellectual property law’s open areas that also effectively employ norms to reduce copying. Even when norms fail, typefaces, especially those that require the most time and investment to design, are resistant to plagiarism. Typefaces are also subject to the vagaries of artistic movements and fashion-like cycles. As tastes change, which they do rather quickly, new typefaces have to be made to comport with the new aesthetic. Advertising and the advertising industry is an important cog in this process helping, among other things, to speed the fashion-cycle.

Typefaces are also non-rivalrous, almost always existing as digitized computer fonts. They are therefore subject to file-sharing, like any other digital media. However, file-sharing probably has not damaged the type design industry. Among the most likely culprits for the reduction in the price of computer fonts is the practice of bundling computer fonts with operating systems and other software. This is especially true among software geared to graphic design professionals. Adobe, among the largest foundries in the world, primarily creates new typefaces to make its software, which is a much more lucrative business for it, more attractive.

Other analyses of industries operating in the open areas of intellectual property law have shown how they, too, can be innovative, creating significant new expressive works. The more interesting question is not how any one industry operates in intellectual property law's open areas, but whether any industry now protected by intellectual property laws would be sufficiently innovative if protection were taken away. The small number of industries that have been examined so far are probably not a large enough sample set from which an answer can be derived. More observations are therefore needed. What might become apparent upon such a cataloging is a general principle. This paper has shown how many mechanisms work together to encourage innovation in the typeface industry. This suggests that other industries could also have several mechanisms that work together, often in unexpected ways that could never be predicted by mere theory, to produce innovation in expressive works without protection from copyright or other intellectual property laws.

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