Font or Font Software

Artem Drabkin

Hi,

I'm working for Paratype, Moscow. Currently we are in a process of updating our license policy. Here, in Russia, we can protect fonts as "an art work representing images of letters, numbers and other characters". We have two successful suites against publishing house and major insurance company were we protect the fonts as a graphic and design object. You can check the links  and copy text into Google Translate
http://kad.arbitr.ru/PdfDocument/d57af4e0-543d-47a2-b901-c02088fbee95/A40-20099-2014_20141212_Reshenija_i_postanovlenija.pdf
http://kad.arbitr.ru/PdfDocument/cbd97a58-ceb3-4834-a004-d01403e3fb6a/A40-14089-2016_20170512_Reshenija_i_postanovlenija.pdf

So in Russian license we firmly state that we license Font (graphic) and Font Software (files which are not actually software, but it's off topic of this discussion).

Once I go West the story became complicated since few countries give the fonts protection as a graphic object. Most of the foundries usу the term "Font Software". Myfonts use both terms with the same meaning. 
My question is what term should I use? Or, if I will put "Fonts and Font Sofware" (like  "The Licensed Fonts and Font Software are licensed to you for Use only under the terms of this Agreement") will it looks weird?
Thanks in advance

Kent Lew

Historically, the “art work representing images of letters, numbers and other characters” was considered the “typeface” and the means of reproducing those images — i.e., the physical metal sorts, or the photofilm negative, or the computer file, etc. — was considered the “font.” (In American English, anyway.)

Since the advent of desktop publishing, however, the term “font” has gradually evolved, through vernacular use, to be applied now to the intangible design of a typeface also (much to the annoyance of some of us old-timers). Thus the rise of the more specific term “font software” to mean the original, narrower sense of the actual font file and computer code.

In your case, it sounds like Russian law allows you to protect the actual typeface designs as well as the font software. Which U.S. copyright does not.

Shahab Siavash

Kent Lew said:

In your case, it sounds like Russian law allows you to protect the actual typeface designs as well as the font software. Which U.S. copyright does not.

I always had a general wondering about this. But there wasn't a related topic or I didn't see it. In case of situations like when the Copyright law of 2 different countries are different so using one country law could harm the creator or designer what would be the best solution? 

For example there are countries that basically does not have Copyright law as the western world has and therefor a lot of things users could do are basically "legal" in their country but not in a global understanding of Copyright. One should listen to his conscience or his country law and just care about not getting sued?

Adam Twardoch

Artem, 

This is an excellent question. I've found it pitiful that most font vendors worldwide, including those from Europe or South America, have blindly drafted their EULAs purely around the limitations of U.S. copyright law. It's ridiculous that they seem to have completely abandoned the potential protection of their own domestic legal systems, and by doing so they have weakened the value of their intellectual property. 

Why weakened? Because many countries don't have any specific exclusion of typeface protection as visual works, like the U.S. has. If a legal case emerges in some country, judges will most likely want to consult with experts in the field, and the experts will possibly look at what the consensus is in the creative community itself. 

It looks like the typeface vendors have silently and passively accepted the "reality" that typeface designs aren't subject to copyright protection as visual works. Well, they may mention that this is only "in U.S. copyright" in some informal discussions — but this is not reflected in the legal reality they *project*. 

And yes, that *projection* of legal values by a given community is what matters. Courts of law in the UK, France, Poland, Argentina or Thailand don't have magical knowledge of a variety of specific topics. When it comes to deciding what the manifestation of individuality, creativity and originality is in a given segment of the creative industry, courts will look at what position the authors themselves represent. 

Typeface authors have for some reason, as a whole, abandoned ship.

I haven't heard the phrase "typeface author" in a long time, there is very little mention of authorship.

The EULAs practically never underline the claim (or ambition) that the digital fonts, while *also* claiming to be software programs (especially for the purpose of jurisdictions where that scheme is the only available protection scheme), also claim that they are copyrightable visual works. 

So right now, if a judge sampled various EULAs from various foundries worldwide, that judge would most certainly be under the impression that the typeface authors themselves don't think their creations are copyrightable visual works — because they only talk about "font software". 

"If the majority of these people doesn't want copyright protection, well, I won't be the one who'll try to change their minds," the judge would say. 

This is pitiful for another reason: if a user accepts a EULA, the user accepts (at least to some extent) a certain legal reality that the EULA defines. If my EULA said my typeface is a work of art, then even if the general copyright (in the U.S.) does not agree, those who accepted the EULA would still be bound by such commitment.

Just like the font EULA can prohibit you from doing various things that the general copyright permits, it could include phrases like acknowledgement that the font software is digital expression of a typeface which in itself is a visual work that is protected under copyright in many jurisdictions. 

This would have the effect that those who agreed to the EULA might be in breach if they imitate the design, but it would also have educational effects, lobbying effects, and would actually strengthen protectio in many countries.

But the majority of typeface authors seems not to see enough value in their rights so they would do something about it. They seem to passively acknowledge that whatever some person in the U.S. Copyright Office "ruled" some 40+ years ago (!) is true forever and valid globally. 

I mean even when German foundries sell to German users, they use this American "font software only" template. Actually, in Germany the situation is slightly differrent because of the country's 1981 special law dedicated to typeface protection. But there are tons on protection schemes not available under U.S. law but available under EU law which European font makers seem to have been happily ignoring. The 1996 EU database directive, anyone? 

The thing is — if type designers as authors send out such a strong signal that they themselves don't care much about the legal protection of their own work, why should others (users, courts) care? 

So, thank you, Artem, for raising this issue. You should be using triple protection: typeface as visual work, font as database and font as software program. In case the software program scheme fails (and you're right to recognize that it's whacky), you still have the database scheme. 

Adam Twardoch

The tldr version: font EULAs don't state what the reality IS. They state what YOU WANT IT TO BE. Other parties can disagree and dispute, then you go to court and some person rules. But most likely, this won't happen, so you as a font vendor have the power of using the EULA reality distortion field most of the time. 

But, looking at 99% of today's EULAs, it's evident to me that font vendors don't WANT their works to be protected even adequately. The sole reliance on the software scheme is extremely short-sighted and weak. It can completely fold any minute. 

Well, it actually already has: in 1997, a Polish court ruled that fonts are NOT software programs. This was actually the wish of a Polish font distributor because in 1994 the Polish copyright reform had an abolishment clause for illegal software use, and the accused was using that defense, while the distributor managed to get damages because the court decided that fonts did not fall under the abolishment clause because they were not software programs.

Anybody could dig up that line of reasoning (remember that in this case it was the "font-friendly" side that was claiming fonts are not software) and basically make the whole "fonts are programs" line collapse. But it seems that most font vendors have happily abandoned other means of protection. Why? I have no idea. 

Adam Twardoch

BTW, I applaud ParaType for being one of the few font companies that actually haven't blindly copy-pasted the U.S. template thinking.

And of course I applaud the Russian legal system that protects typefaces as visual works, the way many people think it should be in other countries. 

Given that the U.S. and Russian top officials have very good relations these days, perhaps some lobbying at the U.S. Copyright Office might be in order. Once every 40 years shouldn't be too often, I think? 

Adam Twardoch

Kent Lew said:

In your case, it sounds like Russian law allows you to protect the actual typeface designs as well as the font software. Which U.S. copyright does not.

Kent, 

do you happen to know the answer to why most foundries, even those not based in the U.S. (with few notable exceptions that include ParaType), restrict their protection claims solely to "font software", and rarely or never claim protection of their designs as visual works (even if such protection might not apply in some jurisdictions)? 

This leads to the situation that ParaType’s fonts sold in Russia enjoy stronger protection than products of most other foundries that also sell to Russian entities. I know that some people still can't get over the fact that Jimmy Carter defeated Gerald Ford in 1976, but I would have thought that some others have moved on. 

Dave Crossland

If copyright applies to letterforms, no one can design new typefaces without some litigious person or company who owns something similar coming after them. The companies with 1,000s of letterforms on file would have a lock on what can be published by new individuals or small partnerships entering the market. 

Adam Twardoch

Shahab Siavash said:

...countries that basically does not have Copyright law as the western world has and therefor a lot of things users could do are basically "legal" in their country but not in a global understanding of Copyright. One should listen to his conscience or his country law and just care about not getting sued?

Many legal strategies in international law  work on the principle of "let's throw at them 5 completely different things and let's hope that one of them sticks". 

A reasonable strategy for legal protection of fonts should claim protection of several different "natures" of fonts (that's not even dishonest because fonts do have different natures) — as a visual work, as a uniquely arranged database, as a software program, possibly more. Then, there is a greater chance that even if some country a certain protection method isn't available, another still might be — even if it's partial or time-limited.

In the end, from the point of view of individual users, it does come down to ethics and probabilities. It is unlikely that a uniformed team will storm your house and search your computer for an illegal copy of Univers Next.

So here, the community aspect counts: you pay for fonts because ypu want to support the authors you like, and hope that they will have money to create more stuff you will like.  

The "hard" legal aspects are more relevant to institutions, companies, agencies, publishers — i.e. those that actually generate money, and do so partly because they use works made by other people (fonts, software programs, photos, music etc.). 

KP Mawhood

@Artem Drabkin 

It won't look weird if defined clearly, e.g. "the licensed typeface designs, documentation and font software". Or define "font software" as a term that includes design and software. There's a number of examples out there.

@Adam Twardoch
It doesn't seem fair to infer that font EULAs are written without care, when many of us know the opposite is quite true. Many EULAs define "font software" to incl both design and software.

There is a discussion, but that links to legal systems far more than the varying interpretations of individual EULAs by lawyers, licensors and licensees.

Adam Twardoch

Dave Crossland said:

If copyright applies to letterforms, no one can design new typefaces 

But copyright, and various other forms of protection outside the “font as software” scheme does apply to letterforms and has for decades. Some (but few) companies have been using the German protection scheme under the 1981 Gesetz zum Wiener Abkommen vom 12. Juni 1973 über den Schutz typographischer Schriftzeichen und ihre internationale Hinterlegung for example. And of course the Vienna Agreement of 1973 has clearly stated that typefaces enjoy protection as visual works — just that the general copyright would not easily apply because of specific properties of typefaces. But nobody, except the U.S. Congress when passing the Copyright Act of 1976, has ever completely ruled out “visual” typeface protection. 

(Copyright does apply to music. There are companies that have 1,000s songs on file. And?)

Adam Twardoch

Actually, Dave, it’s the other way around. The companies with 1,000s fonts on file can afford paid protection under the German scheme and under the U.S. Design Patent scheme. Adobe owns the U.S. Design Patents D318290 and D327902 for Adobe Garamond (!), and countless other design patents for Minion, Myriad, Bickham Script, Adobe Arabic or Adobe Thai. “New individuals or small partnerships entering the market” rarely have the resources to do the same, but general copyright is a much more level-playing field. 

Adam Twardoch

Katy Mawhood said:

@Adam Twardoch 
It doesn't seem fair to infer that font EULAs are written without care, when many of us know the opposite is quite true. Many EULAs define "font software" to incl both design and software.

Katy, 

I’d be grateful for “many examples” of EULAs that claim more comprehensive protection that just from the point of view of software program protection — not in passing, as some kind of ignorable sub-clause that is easily omitted, but in a straightforward, no-doubt way. I have read hundreds of EULAs, and it’s hard for me to remember one that that clearly spells out that the letterform design is protected by copyright to the extent permitted by a given jurisdiction. I have no doubt there may be a few, but this is not the vast majority. I have yet to see one EULA that uses the EU sui generis database protection, despite it being a tremendously useful fallback for digital data if the “software program” protection folds (like it did in Poland). 

There are creative industries where people share knowledge, gather resources, hire lawyers from different countries, work out comprehensive legal templates that offer multi-jurisdictional protection and share these templates with colleagues. I haven’t seen much of that in the type industry. Instead, our most popular font-specific open-source license is only valid for five years in some countries, because their authors omitted the obvious word: “perpetual”. I’m talking about the OFL, and I’m not making anything up. 

Adam Twardoch

Ps. I’m sure there are lots of people who care. But they don’t do enough to show that care. 

KP Mawhood

It's a Sunday, so I'm not at the office - but here's two I searched for, I haven't searched for any others.

1) Commercial type
For the purposes of this Agreement, “Font Software” shall be defined as the design of the Fonts together with the Font Software which, when used generates the typeface, typographic designs and, if applicable, ornaments or other designs. 

2) Type Together
License to use the Font Software (“Font[s]”) and the designs embodied therein together with any accompanying documentation

Your explicit definition "copyright to the extent permissable by the given jurisdiction" is broadly covered in the final section of many EULAs on governing law.

Yes, other industries have made a collaborative effort and that would be great to see in our industry. Which ones would you refer to as good models? The pro performing rights organisation always sounded interesting, in terms of their overview on royalties.

@Dave Crossland What are you thoughts on the OFL perpetuity? I'd consider it low risk given past discussions / reassurances. It could be a risk in future usages, by others or as legal systems change.

People aren't superheros, however boldly they try.

Mike Wenzloff

Hmm. I have hesitations about font as art/design being copyright protected.

At some level, I just see it as possibly being abused by, well, any person or the court. While I can appreciate some design difference between the Garmonds (for instance), at what point could/would be an infringement case be successful against other designers?

And all the more so for the bazillion sans-serif designs out there that are all but knock-offs. Or the even more "brush scripts" that are seemingly churned out by the dozens every week?

I very much appreciate the few countries that seem to extend and enforce such design protections. But on the whole just were does infringement occur? And who decides? Some judge or panel of judges who may or may not appreciate design subtleties? Then would that just go back to who has the better lawyers?

In any case, just like with actual software I buy and install, there is typically a clause that indicates that the preceding and/or following verbiage is subject and interpreted by one's local judicial system and sometimes adds where in the world such legal disputes would take place or is governed by. Is this not something that could be added to a font EULA?

Mike

Dave Crossland

Adam,

My understanding is that unlike US utility patents, US design patents don't cover the idea, but the specific implementation, and afaik the EU design rights also don't work so broadly. They cover exact copies. 

The problem with copyright for type is that it's too broad and invites "Your new typeface reminds me of my typeface and I'ma sue you" shenanigans.

Katy, 

I'd venture that each time you receive a work under the license it's a new distribution and a new license term? Or, ideally/more safely, but conditionally, fonts are updated at least one within 5 years and then the new version is a new work, and assuredly a new distribution, under a new license term. We'd need a Polish lawyer to be sure, I guess. 

The OFL could be improved but I'm not aware of any really major problems that would necessitate a new license drafting process. I'm grateful for SIL doing the work they did way back when, and it's easy to nitpick (not that you and Adam are nitpicking, more I mean myself in the past and it's hard to do the work. For me I have bigger fish to fry.

Hrant Հրանդ Փափազեան Papazian

Dave Crossland said:

The problem with copyright for type is that it's too broad and invites "Your new typeface reminds me of my typeface and I'ma sue you" shenanigans.

Yeah, nothing like other areas of business...

Dave Crossland

Hrant H. Papazian said:

Dave Crossland said:

The problem with copyright for type is that it's too broad and invites "Your new typeface reminds me of my typeface and I'ma sue you" shenanigans.

Yeah, nothing like other areas of business...

Right, like the fashion design business, where copyright doesn't adhere and making similar clothes is not a crime and we get constantly new stuff, and unlike the dvd player business where overly broad copyright has suppressed DVD jukeboxes until we had enough bandwidth for Netflix to offer jukebox experience over the wire instead of over the mail

Hrant Հրանդ Փափազեան Papazian

I meant shenanigans is a cornerstone of the legal profession.

Artem Drabkin

Katy Mawhood said:

@Artem Drabkin 

 Or define "font software" as a term that includes design and software. There's a number of examples out there.

Can you provide links? It sounds really strange to mix information and artwork in one term...

@Adam Twardoch

Thanks for interesting discussion. My question is mostly focused on the perception of terms by End Users. Will they be surprised by such definitions? At the end - will it ban them from the purchase of our fonts? 

Artem Drabkin

Kent Lew said:

Historically, the “art work representing images of letters, numbers and other characters” was considered the “typeface” and the means of reproducing those images — i.e., the physical metal sorts, or the photofilm negative, or the computer file, etc. — was considered the “font.” (In American English, anyway.)

Thanks a lot for explanation! It was long time I wonder what the difference between two terms.

KP Mawhood

Artem Drabkin said:

Can you provide links? It sounds really strange to mix information and artwork in one term...

Sure, here's two examples from earlier:

1) Commercial type
For the purposes of this Agreement, “Font Software” shall be defined as the design of the Fonts together with the Font Software which, when used generates the typeface, typographic designs and, if applicable, ornaments or other designs. 

2) Type Together
License to use the Font Software (“Font[s]”) and the designs embodied therein together with any accompanying documentation

KP Mawhood

@Dave Crossland

I'd venture that each time you receive a work under the license it's a new distribution and a new license term? Or, ideally/more safely, but conditionally, fonts are updated at least one within 5 years and then the new version is a new work, and assuredly a new distribution, under a new license term. We'd need a Polish lawyer to be sure, I guess. 

The OFL could be improved but I'm not aware of any really major problems that would necessitate a new license drafting process. I'm grateful for SIL doing the work they did way back when, and it's easy to nitpick (not that you and Adam are nitpicking, more I mean myself in the past and it's hard to do the work. For me I have bigger fish to fry.

Yes, we're likely to update the SIL OFL licensed fonts and libraries at least once over the next five years. I'm very happy with the OFL as a license, and absolutely SIL did amazing work. The adoption of the OFL across open-source font licensing is incredibly helpful.

@Adam Twardoch
In the office now, looking over our licenses, I can see that there are a good number from well-recognized foundries that have no mention of typeface or design. It may be that you'd consider those I listed as an "ignorable sub-clause", but in terms of risk that's exactly the kind of thing that licensees feel they must track.

Dave Crossland

Katy Mawhood said:

a good number from well-recognized foundries that have no mention of typeface or design. It may be that you'd consider those I listed as an "ignorable sub-clause", but in terms of risk that's exactly the kind of thing that licensees feel they must track.

https://en.wikipedia.org/wiki/Estoppel  

KP Mawhood

I don't see why, Dave? I enjoyed reading the wiki. 

Dave Crossland

IMHO, if a font license assets copyright adheres in the work, and grants permission to use the work that is asserted as withheld on the basis of that copyright, but does not grant permission to use the work on the basis of EU Design Rights or other kinds of restrictions, but also does nothing to follow up on the violation of those rights, then users may claim under an estoppel doctrine that they were permitted. TINLA.

JoyceKetterer

Forgive me if I misunderstood the flow of the conversation.  I think there's a suggestion on the floor that all  EULA should discuss the typeface as a design product the way it is treated in Europe.  

I just checked our EULA and we are among the foundries @Katy Mawhood is talking about that don't use the work "typeface".  We just talk about font software.  We're aware that Europe treats the design differently than in the US but our general rule with the license is to treat everyone by the standard of the most permissive law.  For instance, we permit all licensees to open the software to look at it because some places would override us if we didn't (we didn't used to for the sake of clarity since you can't modify the software).  It's just easier for us if everyone is treated the same.  But also the governing law for our EULA is NYC.  I think it might be the same for some of the foundries discussed.

As far as updates go, @Dave Crossland's venture makes things sound so much more linear than my reality.   We update our EULA as needed and same with the fonts.  Certainly more frequently than every five years in both cases. If a licensee gets a new download of the fonts (either because of an update or because they need to reinstall) or renews a timed addendum they agree to the current EULA in order to complete the action.  In some cases it's the same EULA they already agreed to but that's too difficult for us to track so we just make them agree and send a new EULA.  

IfSixWasNine

Hi all, reading this treath about font software and copyright. I understand that source code can be copyright protected under various jurisdictions. However, there should be some treshold of creativity and the work should not be generic. I am more of an alfa person, and this is a question for all the beta's out there. Looking at a font software file. Eg. https://github.com/enlacee/pbi-peru/blob/master/src/assets/fonts/museo-sans/MuseoSans-100/MuseoSans-100.ttf 
What part of the "code" would actually be copyright protected? Also for copyright protection to work on the sourcode (in case you could speak about source code in relation to font software), the people creating the fonts would also have need to have written the source code, (as the font designers often claim copyright in the fontsoftware) but it seems to me that writing software is whole different metier than creating fonts. 

So question, what is it actually that is claimed to be copyright protected in font software?

Who would own that software?

Very curious about your thoughts!

Christine Bateup

For those of you who don't know me, I'm the Director of Business and Licensing at Frere-Jones Type, and also an attorney. I generally refrain from commenting on here as I don't want to be misconstrued as giving legal advice, though I'm always more than happy to speak to designers informally about fonts and legal issues, particularly in the United States.

@IfSixWasNine you seem to have just joined TypeDrawers using the name Quirijn Meijnen. I did a quick Google search and it looks like you're an IP lawyer in the Netherlands, is that correct? If that's true, I don't think it's appropriate for you to be posting questions such as these on TypeDrawers, particularly when you are not revealing this information and it's unclear why you're seeking such information from type designers on this forum. If you're an attorney, I'm sure you'll also realize that any responses you might receive here from type designers may not accurately reflect current legal understandings with respect to font software.

I would suggest that others on here don't offer opinions in response to these questions. I'm sure you might not be surprised to hear that there are attorneys in active disputes with type designers who follow these discussions on TypeDrawers, and I don't think it's helpful to the type design community to opine on these matters in public forums such as this.

IfSixWasNine

Hi Christine, I work as an IP attorney.  It is certainly not that I want to give legal advice on this forum. On the contrary, I am trying to understand on what ground Font software would be protected. This seems to me a rather principled question that should certainly be answered. I had hoped that people on this forum would be able to clarify this. I think it's particular helpful to the type design community to opine on these matters in public forums such as this. If the protection of Font software is so clear, surely there is no problem explaining it. If that protection is not so clear then it seems to me that it is also in everyone's interest to know, Especially now with the rise of AI that may make such font software obsolete in the future.