Here’s Kai from the Lazydogs Typefoundry. Since months we’re sitting on a font family ready to release. Unfortunately we have some legal issues to be solved. Therefore we wanted to discuss this problem with everybody in the community.
Our fellow designer Holger Königsdorfer began a new interpretation of Jan van Krimpen’s Romanée during his time at KABK. On our impulse he overworked the font and completed it the last two years. We checked the name rights … and found them ended. Pretty good for our release plan! But … as we informed teff about our plans the following happend …
The Enschedé Font Foundry (teff) claims, that they had acquired the rights from the former Enschedé Foundry to commercialise certain typefaces of Jan van Krimpen. This seemingly concerns the shape and name, although no real evidence to this »ownership« was shown by teff on our request and the international trademark registry does not file »Romanée« as a typeface name.
Meanwhile, we found out that teff had made some efforts in the past to digitise Romanée. Unfortunately they couldn’t develop a design, that suits both the commissioned designer and the foundry. So the project was terminated according to our knowledge.
Lazydogs tried to approach teff with a variety of ideas concerning our release-plan of Holgers interpretation: We suggested to compare the designs to maybe differenciate them more. We thought about a »double-release« to gain media attention. Even to promote both versions on our websites and let buyers decide, which one they like better. We would even offer teff royalties if they proved ownership of the design. But every effort we made to find a good solution that serves all parties in this discussion culminated in the phrase »We own the rights to Romanée, and we don't negotiate on them«.
We would love to make Jan van Krimpen’s remarkable Romanée typeface available to users again. We believe, that it is not in his sense to withhold his design for such a long time. And we would love to honour Holgers work by releasing his family. What we certainly don’t want is to hassle with anyone in our branch or to infringe any of our colleagues rights. Releasing the font and being blamed as copycats makes some real headache to us.
So we’re pretty interested in your opinion in this case. Let us know what you think is the best way to go.
(The Lazydogs Typefoundry)
Under U.S. law, the designs of typefaces are not subject to copyright protection, though their names may be trademarked. Digital fonts can receive copyright protection, but only as computer code. So, if Lazydogs were a U.S. company, there would be no restriction whatsoever for your release of digital fonts based on van Krimpen’s Romanée, whether or not anyone else has made fonts based on the same designs. The name is a little more tricky, but as it is also a place name in France (Vosne-Romanée, home of the renowned wines La Romanée and Romanée-Conti), it would be very difficult to protect under U.S. trademark law unless someone else held that trademark specifically for a typeface design. Trademarks in the U.S. are only granted for things that are in manufacture, though it is possible to obtain a provisional trademark based on “intent to use” for a reasonable period of time. I cannot comment about EU laws, though I am aware that, in certain countries, including Germany, abstract shapes may protected as industrial designs.
Why don’t you create a U.S. corporation or make a partnership agreement with a U.S. typefoundry? You might also consider changing the name to something like LDRomanée.
Don’t be intimidated. Many organizations and individuals claim copyright to things in which they have no rights whatsoever. Good luck with this. I look forward to seeing the fonts! I always thought Romanée was an exceptionally beautiful design, perhaps van Krimpen's best.
This simplifies everything. Don't release it until you get a clear legal agreement. That's the nature of reviving a fairly recent design known to have legal/rights hang ups.
I think you should begin to take steps to release the fonts. The European infringement cases I have read all concern digital-to-digital piracy or violations of written license agreements. What Holger has done is something entirely different: he made a digital interpretation of an analog artifact. It was not a unique artifact, but rather one that was reproduced thousands (perhaps hundreds of thousands) of times in cast metal and sold commercially. It was then published as type in thousands of book pages.
The keyword here is “interpretation,” which is the essence of every revival design. If the people at TEFF were to make their own version, it would be different, not only in design details but also in its computer code. It may well be that what TEFF purchased or otherwise acquired from the Enschedé Lettergieterij was not even theirs to sell or had no actual value. Defending their “rights,” such as they exist, would be very costly and likely lead to nothing. I think the mistake you made was getting in touch with TEFF to begin with. What you should do now, if you are concerned, is get in touch with an attorney experienced in this sort of thing and see where you stand. Having a lawyer send a letter to TEFF announcing your intent to release the font would demand a response, after which you can make a final decision. In the least, TEFF would have to have their attorney describe what sort of "rights" they obtained from Enschedé, which you could then evaluate.
The published type work of Jan van Krimpen is well established as important cultural material. It is studied in schools and has been written about by historians of type and lettering. Basing a font on Romanée, which was first released in 1928, is no different from basing a font on any other type design of the era, which happens all the time. Because the works originated in a different medium, any digital version is inevitably an interpretation, which always has original elements.
* Not just "Scott", I presume.
This I'm not sure about. They would have found out anyway, and this way they can't claim evasion. Plus it's basically the honorable thing to do. What might have been a mistake though was bending over backwards trying to make concessions.
BTW, on the anti-squatting rationale:
If you do release the design, I would very much hope that you pick a new name for the typeface, and not call it Romanée.
You already know that there are individuals close to the original design (in terms of geography, history, tradition, family, not to mention who have relationships with the company that originally published the foundry-typeface) that would not welcome your use of the name.
I personally would not dismiss their feelings on the matter, especially because they already made those clear to you. It is not worth the backlash online, and in the design press, that they could surely bring onto you, if they so desired.
I agree that the name should be different; probably the only concession necessary. Romulée? :-)
If you cower from online backlash (the new black...) you cannot contribute to progress. And the design press? I haven't seen them side with protectionism in a while...
And I will once again point to Eros, a more extreme case. Where's the crippling backlash?
Here's some more opportune advice: say No to revivalism.
BTW what do you think of Scott-Martin's advice?
It appears that a digital revival of Romanée has already been made by Mark Askam, of the Chestnut Press: http://www.thechestnutpress.com/romanee.html. It is a personal-use font, used in letterpress printing via polymer plates.
It’s interesting to see how much thinner it is than Holger’s version http://www.koenigsdoerfer.com (see “revival project”)—an appropriate choice given the difference of the intended medium. But that, in itself, raises important issues of interpretation and originality—the same as would be applied to a new digital version of a type based upon Baskerville or Granjon. I believe that, 125 years after his birth, van Krimpen’s work belongs to the same category of classics, which means that they are likely to be interpreted again and again over time.
Dan, I don’t think people walk down the streets of Haarlem thinking longingly about the type Romanée, let alone worrying about whether or not Holger’s revival was authorized by an organization, a digital type foundry that hasn’t released a new design since 2000, and that may or may not hold any rights. Any emotional attachment they have with that name would more likely be with the bottle of Romanée-Conti they cannot afford.
Again, rather than let what appears to be a fine piece of work languish, it would behoove Holger and Lazy Dog to hire an attorney to settle the matter one way or another. I bet that the only rights held by TEFF are to the fonts they’ve published.
* Although this was mildly interesting: http://www.typophile.com/comment/440405#comment-440405
According to Scott-Matrin it doesn't extend to the US for one thing. And maybe no longer the UK? Hey if this ends up being published in the UK maybe the name should be Brexitée.
This University of California Davis law review article, from 2009, offers a pretty good overview of U.S. copyright law in regard to fonts and typeface design, as well as other aspects of U.S. law that bear upon it: https://lawreview.law.ucdavis.edu/issues/43/1/articles/43-1_Lipton.pdf. The 1988 decision of U.S. Copyright Office on the copyrightability of digital typefaces can be read here: https://en.wikisource.org/wiki/Policy_Decision_on_Copyrightability_of_Digitized_Typefaces.
What John Hudson wrote, above, regarding the Berne Copyright Convention is not relevant here. What Berne covers is a set of “minimal standards” that apply to all its signatories, but what it addresses—exclusively—is the work of authors and artists, not other forms of intellectual property. A more germane treaty would be World Intellectual Property Organization Copyright Treaty (WIPO/WCT). But again, it covers only minimal standards and falls short of covering things that fall between the cracks, such as type design. No country will protect a copyright that it, itself, will not grant, though the EU makes some exceptions to that within its membership. It is, therefore, impossible to defend a type design copyright from, say, Germany, in the U.S. when the U.S. law has specifically excluded the design of letters from its copyright code. (I suppose you could try—if you’re a billionaire.)
The only possible coverage of type design in the Dutch copyright law is Article 10, no. 11: “works of applied art and drawings and models of industry.” There may be case law there, too, but that’s outside my knowledge. What places fonts into such a vague area is that the white space between letters is as important as the letters themselves, thereby reducing the letters to just one component. Moreover, the underlying form of the alphabet is preexisting.
I would ask these questions in opposition:
— Does it make sense to follow all the laws of all other countries? Does it even make sense to cherry-pick and follow a law of another country that has in fact changed in the 80 years since the work's creation that happened to occur there? A work that was notably based on other sources? A work that others (not least Rädisch) contributed to? If JvK's death does not invalidate ownership, neither does the death of those he based his work on invalidate theirs. Why is specifically 70 years after the death of the author relevant, morally? It's just another law in some other country. Countries have different laws mostly –although of course not entirely– for good reason, and our own citizenship is mostly a matter of circumstance. Saudi women who move to the US can drive.
— Isn't type squatting a doubtful practice? I don't mean legally, I mean culturally. To be fair, I'm not completely sure this is a case of type squatting; but every passing year (especially with no fonts being released in a decade, if I'm not mistaken) it becomes more likely.
— Is it not possible for somebody to be sufficiently opposed to a given law that they decide to take a morally valid risk? Illegal things are not necessarily wrong.
As always, Intent is the key. If the intent is to take advantage of people, of course it's wrong. If the intent is to finally make something culturally valuable available to users, then it's not. Especially if they're taking a personal risk.
I worked from a printed example, as that’s how, IMHO, the best revivals of old types are done, so no point piracy was involved.
I discussed the project with Rod MacDonald (friend and colleague), who designed the presently available version of Cartier (which is as much redesign as revival), for Monotype, in 2000, and he was very supportive.
I couldn’t use the name Cartier, of course, which is a Monotype trademark, so I named my version Dair.