The proposed moral code of ATypI is nothing new at all (in fact, it was deprecated in 2004 without replacement), but I was wondering what you all thought if it, as it applies to your own designs and to others (and some distinctions not really discussed in it which might or might not be important to you).
Here's the relevant passage:
(2) Members consider it to be incompatible with their professional ethics to make a
reproduction of another member’s typeface, whether identical or slightly modified,
irrespective of the medium, technique, form or size used, unless the owner of the
typeface has given his written agreement on terms granting a license.
(3) If, after a minimum period of fifteen years of the typeface first being offered for sale,
the owner refuses to grant a license, members may copy the typeface provided that the
unlicensed copy is sold under a name which is in no way connected with the original
name. The manufacturer of a copy made under these circumstances must not
contravene trade mark rights, industrial property rights, copyrights, laws against
unfair competition etc., or private agreements.
So, the reading I have is that by this rule, after a typeface is fifteen years old, it's OK to copy it between ATypI members (provided that that's kosher by the design patent or copyright laws, as they may or may not apply in your jurisdiction). Of course, the fifteen-year rule is a mere industry agreement, since the law in many cases provides no protection (and this term is just set by the Code morale).
I think type cloning isn't altogether illegitimate; for example, it has been a boon to the open-source community that something such as the URW35 exists. I do recognize obvious reasons why somebody would be against cloning in some circumstances (contemporary and unique fonts, for example), though.
To you, are there distinctions not being drawn here which you think are valuable in your idea of design community ethics? For example:
- Does the amount of existing clones matter? Surely, nobody would mind another clone of Times at this point (except for the fact that it would be quite boring). Sabon has also been cloned a number of times, but its clones are less prevalent. Is a Sabon clone as acceptable as a Times clone? And is the person who creates the first clone doing something more unethical, in your view, than the person who creates a clone after there are already a number on the market?
- Does it matter if the original typeface designer is alive? Robert Slimbach's Minion is over fifteen years old. It had a design patent, but it has expired. In the US, at least, I could draw my own version of Minion, and as long as I didn't use any of the original outlines, I could release that. But is that OK to do while Slimbach is still around? ATypI seems to say yes.
- Does it matter what you're doing with the clone? Is it better to release a clone under the OFL than it is to try to profit off of somebody else's design?
The reason I ask is because I'm not really sure where people stand on this issue, and where designers particularly think the lines should be drawn between other designers, as opposed to where corporate entities think the lines should be drawn (as reflected probably in the ATypI proposal).
ATypI, in case that its mission happens to be representing type designers, better explicitly revoke this outdated nonsense which actually harms type designers while it favors copycats.
If you ask for practical reasons: There is no need to redigitize otherones' typefaces, these are most likely available for licensing anyway. Design your own typefaces.
A bit of context is called for, here. When the Code Morale was created, in the world of metal and phototypesetting, it was a major strengthening of existing practices, when immediate copying/imitation of typefaces was the norm.
But times changed, and despite not much attention/weight being given to it, the Code Morale became a relic of a different era—at a time when prevailing practices mostly split between being at least as respectful than the Code Morale, and barely operating within its bounds.
Speaking only for myself, I:
1. As Karsten and Thomas note, the terms of that section of the statutes reflected the make up of the organisation of an earlier era. At that time, the development and marketing of new typefaces was linked to specific typesetting machines and systems, and the real money in the business was in the sale of these machines. The typefaces available for a particular machine contributed to the marketability of that machine, so there was a strong impulse copy competitors' popular typefaces and to make them available on one's own machine and system. The fifteen year rule was intended to put some limit on this copying, recognising that the varieties of legal protection for typeface design internationally made it difficult to combat copying via the courts. In practice, the Code Morale had limited success in its intended aim, and there remained instances in which companies that were members of the association copied typefaces before the 15 years were up. It should also be noted that while the corporate members of the association voluntarily submitted themselves to this code — at least nominally —, as a pragmatic effort, it was never popular among type designers. As the nature of typesetting technology, the type business, and ATypI's membership model all changed in the wake of the desktop publishing revolution, the Code Morale was recognised as an anachronism, and one that didn't sit well with an association increasingly made up of individual type designer and small foundries.
2. ATypI began life as an industrial cartel, and the Code Morale reflect this. The removal of that section of the statutes was necessary to clearing away the cartel legacy and establishing the association as a professional and academic organisation with a non-profit status and which companies from jurisdictions with strong anti-trust laws regarding cartels could freely join. Adobe's legal department was particularly cautious in this regard, and I recall that Cynthia and I ran our proposed changes past Adobe's lawyers to ensure that we had taken sufficient steps to make the association clearly no longer a cartel. If I recall correctly, Thomas' election to the ATypI board might only have been possible under those conditions, as he was an Adobe employee at the time.
Maybe there should be an ‹invalidated past documents› page on the website.
The good thing about the Code Morale is that it helped establishing the Designer as the Author of his or her Work. Very important when it comes to copyright. Today, when it comes to the legal situation as ruled by laws, designers have very poor copyright protection. It all has become a matter of license agreements and distribution agreements. The bigger the company is one deals with as a designer, the poorer the standard versions of these contracts are. I.e. not on favour of designers.
Could a new Code Morale be of help?
Other than that, I entirely agree that the context is all-important.
This isn't just an abstract battle between typesetting vendors, either. It percolated right down to the designer level. If a designer was getting typesetting from vendor X, that restricted which fonts they could use, and hence which fonts you could specify as a designer, as their customer.
Times Roman (4 weights)
Helvetica (8 weights)
Courier (4 weights)
ITC Avant Garde (4 weights)
ITC Bookman (4 weights)
Century Schoolbook (4 weights)
Palatino (4 weights)
ITC Zapf Chancery (1 weight)
ITC Zapf Dingbats (1 weight)
Symbol (1 weight)
These fonts were cloned by many foundries, URW, Bitstream and Monotype were amongst them. By the time these 35 PostScript Clones were released (around 1990), Tom Carnase, co-designer of ITC Avant Garde (released in 1970), was still alive, the same goes for Ed Benguiat, designer of ITC Bookman (released in 1975) and Hermann Zapf, designer of Palatino (released in 1950), ITC Zapf Chancery (released in 1979) and ITC Zapf Dingbats (released 1977). Which leaves us with the fact that 14 of these typefaces were designed by designers which were not dead yet. Also, 6 of these typefaces were not even 15 years old. I am not aware of any of the companies which cloned the 35 PostScript fonts even bothered to ask the designers before their initial release, and that includes URW ;–)
Recently, I talked to a colleague about the idea of establishing a new Code Morale. He sent me the animation I posted here. Have some patience when watching it. It starts rather slow. I think it convincingly shows that it is worthwhile to the community of typeface designers to put this on the agenda.
You shall not steal; you shall not deal falsely; you shall not lie to one another.
I am not a Christian, but in this case I fully agree.
The example of Sabon you are using here does not apply, I think. When Bitstream was founded, they somehow magically released hundreds of fonts which quite exactly matched Stempel/Linotype’s digitisations. Some of these digitisations had been done by URW, others had been licensed to URW to sublicense these with their Signus system. A few years later SoftMaker released thousands of fonts which somehow magically appeared to be quite matching URW data. No matter how Bitstream and SoftMaker managed to do this, one thing is for sure. They never asked Stempel or Linotype for permission, let alone to license these properly.
By using the Sabon example you mainly argue in the sense that if two others already have stolen something from someone else, you are entitled to do the same. Not the best reasoning I think.
My advice: If you want to design a typeface by making advantage of someone else’s work, ask for permission from the designer, the foundry or its legal successor. Or look for a design that is available under an Open Source License which suits your needs. There are hundreds of typefaces which are Open Source. There are also hundreds of typefaces for which there is no designer, foundry or legal successor you can ask anymore. Everything else may be troublesome.
In the case of Palladio you halfway missed a point I think. Yes, Zapf approved of Palladio, but he never approved of URWs PostScript clone of Palatino, no matter under what name URW ever sold these. Compare those two typefaces, they are not the same. Yes, Hermann Zapf is not with is anymore, but his wife, Gudrun Zapf von Hesse is still alive. I think that she will not be amused when she hears that you did a copy of her late husbands typeface Palatino.
Why bother about Bembo? It is a poor rendering of the original typeface anyway. No matter which version you take. Too much technical restrictions. 18 unit system, keyboard arrangement, poor insight in typeface design of the draughtsmen that did the drawings … Why not start from original prints? I think that that is much more interesting, and probably more rewarding too.
But let‘s be honest, I think that we will not agree on this. I do have this dumb feeling that you are simply looking for excuses that are partially quite lame, at least in my opinion. And I am trying to explain that designers should respect each others work and figure what designers can do from a moral point of view instead of looking for what they can do.
If you want to learn how to create original typeface designs, I would like to advise you to sign up for something like Type Paris. Jean François Porchez is doing an excellent job there. Good luck!
At the time, in the early 2000s, some of us were looking at the possibility of using ATypI as an organisational host for collaboration on technical aspects of font formats and layout. Ironically, we'd been approached by someone at Adobe about the possibility of ATypI taking over management of the OpenType format specification, but then it was Adobe's in-house legal department that put a brake on things and said they couldn't participate in anything along those lines because ATypI's statutes made it a cartel. That was a big part of the impetus to revise the statutes in 2004, and part of that process was getting the draft revisions reviewed by one of Adobe's lawyers. [As it turned out, the OT format was handed to ISO as a parallel standard (Open Font Format), text and layout processing and display has gravitated to Unicode, and ATypI hasn't really done much in terms of technology.]
Apart from that specific history, my own take — since the late 1990s — has been that ATypI simply doesn't have any teeth, so it doesn't make sense to give it a mission that involves biting things.