Another copyright question (specifically Germany)

Josh_F

Hey everyone,

I know there have been numerous posts over the years on typeface copyright laws (I fully understand the US laws, aka, the font software can be protected but not the design), but I have some questions about European typeface copyright laws, specifically for Germany. Just to be clear, any examples I'm giving are also assuming the typeface names are changed, as I know names can be trademarked.

I'm guessing this is fairly broad, but according to https://en.wikipedia.org/wiki/Intellectual_property_protection_of_typefaces typeface designs are protected in Germany, but only for the first 25 years after publishing.

So my question deals with the fact that many foundries make re-drawn versions of the same typeface. For example, Avenir was published by Linotype GmbH in 1988, so about 34 years ago. If the 25 year rule applies in Germany, it would seem that Avenir as a typeface is no longer protected as far as the design.

But, in 2003, Linotype released Avenir Next, which is an updated cut of Avenir by Frutiger. Does that mean if one were to design a typeface today that was seen as being too close to Avenir, Linotype/Monotype would possibly be able to say it is a copy of Avenir Next, as it was published only 19 years ago?

Hopefully that makes sense. I was just curious, as it seems like Monotype could essentially keep coming out with "updated" versions of everything every 24 years for all of eternity, and protect a very wide swath of the typeface market even hundreds of years later when old designs may be seen as antiquated or ready for some sort of revival.
Thanks!
Josh

Daniel Benjamin Miller

(Not a lawyer, this isn't legal advice)

The basic way this works in most regimes is that things are only protected insofar as much as there is new material.

For instance, if I printed a copy of a Shakespeare's works, that text wouldn't be copyrighted. If I added a new foreword to the compilation, that would be copyrighted. However, putting out new editions with new forewords wouldn't extend the copyright of the older forewords or create new copyright in the public-domain elements.

So, Avenir Next may well have some new protectable element — but anything that originated in Avenir (1988) would not be protected. Only novel material would be protected, or else reprints could count as new works, which they don't.

Short version: updated versions don't extend any expiring copyright in older versions.

Similarly, an old design cannot be protected by copyright just because there are new revivals of it. For instance, a typeface from the 19th century does not become protected by copyright if someone creates a digital revival of it, even if nobody has revived it before.

Note that trademarks and copyright are distinct, so even a fully legal clone of Avenir cannot be called "Avenir" without the permission of the trademark holder.

Josh_F

Cool, thanks for the response Daniel.

And I'm definitely aware of the difference between trademark and copyright, but I appreciate you reiterating incase someone else ends up reading this too.

If anyone from Europe, specifically Germany, has any insight into the 25 year typeface protection law, I'd love to hear your thoughts as well.

Josh_F

Daniel Benjamin Miller said:

(Not a lawyer, this isn't legal advice)

The basic way this works in most regimes is that things are only protected insofar as much as there is new material.

For instance, if I printed a copy of a Shakespeare's works, that text wouldn't be copyrighted. If I added a new foreword to the compilation, that would be copyrighted. However, putting out new editions with new forewords wouldn't extend the copyright of the older forewords or create new copyright in the public-domain elements.

So, Avenir Next may well have some new protectable element — but anything that originated in Avenir (1988) would not be protected. Only novel material would be protected, or else reprints could count as new works, which they don't.

Short version: updated versions don't extend any expiring copyright in older versions.

Similarly, an old design cannot be protected by copyright just because there are new revivals of it. For instance, a typeface from the 19th century does not become protected by copyright if someone creates a digital revival of it, even if nobody has revived it before.

Note that trademarks and copyright are distinct, so even a fully legal clone of Avenir cannot be called "Avenir" without the permission of the trademark holder.

Now that I think about it some more, Avenir Next is a redrawn version, not just additional language support or something, so there is a chance it would be considered novel content... but I guess if it is the "essence" as far as a typeface design goes for copyright sake, then maybe it isn't considered new?

Like you mentioned, you aren't a lawyer, but just was something I was thinking about

Dan Reynolds

A revival typeface is an independent design. It looks different from the original. So, of course it is eligible in Germany (and probably Britain and everywhere in the EU) for a design patent. As far as I know, plenty of “revival” typefaces have been granted design patents. Also, the review process for design patents is not significant. Disputes about designs are for the courts, not the design patent registry.

It may well be that “updated” versions of typefaces cannot be registered under a new and/or extended name (I have not filed for a German patent since 2007, sorry!). Also when Avenir Next was published, 25 years since the original Avenir had not yet passed.

I’m not sure how much caselaw there is on this (I’m also not a lawyer). While the Gesetz zum Wiener Abkommen… that you link to on Wikipedia has been in effect since 1981, I don’t see how it differs from the old design patent law (Geschmacksmustergesetz) that has been in effect in Germany since 1876. From 1876 onward, type designs have been filed for protection under that. My impression is that German courts generally did not understand the differences between type designs, and did not rule for design patent holders claiming that another party had infringed on their patent. I’m sure that there are “good” exceptions, however. I’m also aware of one EU case where the holder of an expired German patent was able to prevent another company from getting a patent on a similar design, via the courts, but I cannot speak anymore about that.

Josh_F

Dan Reynolds said:

A revival typeface is an independent design. It looks different from the original. So, of course it is eligible in Germany (and probably Britain and everywhere in the EU) for a design patent. As far as I know, plenty of “revival” typefaces have been granted design patents. Also, the review process for design patents is not significant. Disputes about designs are for the courts, not the design patent registry.

It may well be that “updated” versions of typefaces cannot be registered under a new and/or extended name (I have not filed for a German patent since 2007, sorry!). Also when Avenir Next was published, 25 years since the original Avenir had not yet passed.

I’m not sure how much caselaw there is on this (I’m also not a lawyer). While the Gesetz zum Wiener Abkommen… that you link to on Wikipedia has been in effect since 1981, I don’t see how it differs from the old design patent law (Geschmacksmustergesetz) that has been in effect in Germany since 1876. From 1876 onward, type designs have been filed for protection under that. My impression is that German courts generally did not understand the differences between type designs, and did not rule for design patent holders claiming that another party had infringed on their patent. I’m sure that there are “good” exceptions, however. I’m also aware of one EU case where the holder of an expired German patent was able to prevent another company from getting a patent on a similar design, via the courts, but I cannot speak anymore about that.

Being mainly an English speaker, it has been tough finding German caselaw dealing with typeface work. The main ones that seem to come up are from when a random company is selling a CD with a zillion fonts and one happens to be owned by Monotype, etc..

To me it is also less about literally making a revival, but more the fear that the Monotype behemoth thinks something is too close to their IP.

That being said, I'm not sure why Linotype never sued URW for Nimbus Sans, being that it is about as close as you can get to a clone. Of course, Monotype purchased URW in 2020, so it is no longer an issue.

Helmut Wollmersdorfer

The original German version of the Wikipedia article is more correct: https://de.wikipedia.org/wiki/Rechtsschutz_von_Schriftzeichen

First, in Germany and other countries of the EU are many laws protecting intellectual properties. They have all special names, whereas US-English uses mostly "Copyright".

See https://de.wikipedia.org/wiki/Geistiges_Eigentum

A checklist for fonts:

1. Urheberrecht (protected 70 years after death of creator)

Most countries of the world signed the Bern Convention and have similar laws. It protects creations of visual art, music and literature. To be protected it needs a threshold of originality https://en.wikipedia.org/wiki/Threshold_of_originality, i.e. trivial creations are not protected. 

In German jurisdiction fonts (typefaces) are only protectable under exceptional conditions. "Revivals" or "reinterpretations" are not protectable under this law. And all created fonts for general use are not protectable in 99.9%.

2. Gebrauchsmusterschutz

This means something like pattern or specimen protection. It can be a pattern in fabric, designed clothing, sneakers etc. A font qualifies for it, if it is outstanding and clearly visual different from other designs (prior art). This was neglected e.g. for Microsoft Arial (imitation of Helvetica) and Segoe UI (imitation of Frutiger). Thus "revivals" will not be protectable. Under this law, if the font qualifies for it, it is protected for 3 years without registration ("patent"), but there must be evidence of prior publishing, if an imitator claims the right. The fee for EU-wide registration is EUR 350. Protection must be renewed and repayed every 5 years, limited to 25 years overall. Even an OFL is worthless without a registration.

3. Markenschutz (Trade Mark)

Must be registered and payed.

4. Font as Software

There are pro and cons in the opinions of jurists and in cases, if fonts have the same protections as software. If the font contains handcrafted hints, it would maybe qualify as software (the part of the hints). Also complicated logic in the OT-features can maybe qualify. It's somewhere 50:50 how a court will decide. What will happen, when only the contours are copied and merged with own rules?

5. Unfair competition

This can e.g. apply, if the fonts are more or less just copied and sold. Without selling it's hard to apply unfair competiton.

Dan Reynolds

Revivals can be registered for Gebrauchsmusterschutz; Adobe Garamond was, for instance.

Or rather, several styles from the family were registered; the time has run out, but one style still has a preview image in the registry. A direct link does not work but if you go here and search for Garamond under Bezeichnung/Erzeugnis(se), they come up: https://register.dpma.de/DPMAregister/gsm/basis

Josh_F

Dan Reynolds said:

Revivals can be registered for Gebrauchsmusterschutz; Adobe Garamond was, for instance.

Or rather, several styles from the family were registered; the time has run out, but one style still has a preview image in the registry. A direct link does not work but if you go here and search for Garamond under Bezeichnung/Erzeugnis(se), they come up: https://register.dpma.de/DPMAregister/gsm/basis

Thanks for the link Dan! Not all, but it seems like a lot of the design patents for typefaces have expired, for example, I noticed the entirety of Univers was patented, but it looks to me as if it has expired. I have a feeling a lot of people were patenting fonts in the 1990s as digital fonts were starting to be used more and more, but often didn't renew them (or they expired).

Here is a link to the Univers 55 Roman patent...

https://register.dpma.de/DPMAregister/gsm/register?DNR=M9780001-0004

Josh_F

Helmut Wollmersdorfer said:

1. Urheberrecht (protected 70 years after death of creator)

Most countries of the world signed the Bern Convention and have similar laws. It protects creations of visual art, music and literature. To be protected it needs a threshold of originality https://en.wikipedia.org/wiki/Threshold_of_originality, i.e. trivial creations are not protected. 

In German jurisdiction fonts (typefaces) are only protectable under exceptional conditions. "Revivals" or "reinterpretations" are not protectable under this law. And all created fonts for general use are not protectable in 99.9%.

2. Gebrauchsmusterschutz

This means something like pattern or specimen protection. It can be a pattern in fabric, designed clothing, sneakers etc. A font qualifies for it, if it is outstanding and clearly visual different from other designs (prior art). This was neglected e.g. for Microsoft Arial (imitation of Helvetica) and Segoe UI (imitation of Frutiger). Thus "revivals" will not be protectable. Under this law, if the font qualifies for it, it is protected for 3 years without registration ("patent"), but there must be evidence of prior publishing, if an imitator claims the right. The fee for EU-wide registration is EUR 350. Protection must be renewed and repayed every 5 years, limited to 25 years overall. Even an OFL is worthless without a registration.

So does the 70 year Urheberrecht protection supersede a Gebrauchsmusterschutz patent? For example, if someone patented a typeface in the 1990s, it has now expired, but it has been less than 70 years since the death of the creator. Which has precedent?

Helmut Wollmersdorfer

Josh_F said:

So does the 70 year Urheberrecht protection supersede a Gebrauchsmusterschutz patent? For example, if someone patented a typeface in the 1990s, it has now expired, but it has been less than 70 years since the death of the creator. Which has precedent?

The two rights are independent from each other. Urheberrecht exists per law, no action needed to get it. If Anton Durstmüller sen. designed a typeface before World War I (2014) and died AFAIR 1968 it's still protected until 2038. His son Anton Durstmüller jun. died 2018. The descendent could claim rights on the typefaces and a court would decide, if they qualify for protection.

If someone else designs a typeface and registers it as design specimen, then it's protected. But it could also be protected by the stronger and longer Urheberrecht.

Helmut Wollmersdorfer

Dan Reynolds said:

Revivals can be registered for Gebrauchsmusterschutz; Adobe Garamond was, for instance.

Maybe nobody claimed against the registration. For Arial Linotype claimed against the registration by Microsoft, and Microsoft lost.

Second, in the year 1989 the legal situation was maybe different.

Dan Reynolds

I don’t think that the design registry reviews submissions, or in other words, make choices about which type designs can be filed and which cannot. Instead, registrations are published and there is a period of time in which other parties may object.

Paul van der Laan

Josh_F said:

That being said, I'm not sure why Linotype never sued URW for Nimbus Sans, being that it is about as close as you can get to a clone. Of course, Monotype purchased URW in 2020, so it is no longer an issue.

Very simple: URW acquired the rights to do so.

In the early days of digital fonts URW provided digitisation services to foundries. They digitised Helvetica for Linotype under condition that they were allowed to use the digital font data for their own purposes. Of course they could not release those fonts under the name of Helvetica since it is protected as a trademark, but they could by giving the typeface a new name.

Josh_F

Paul van der Laan said:

Josh_F said:

That being said, I'm not sure why Linotype never sued URW for Nimbus Sans, being that it is about as close as you can get to a clone. Of course, Monotype purchased URW in 2020, so it is no longer an issue.

Very simple: URW acquired the rights to do so.

In the early days of digital fonts URW provided digitisation services to foundries. They digitised Helvetica for Linotype under condition that they were allowed to use the digital font data for their own purposes. Of course they could not release those fonts under the name of Helvetica since it is protected as a trademark, but they could by giving the typeface a new name.

Thanks for the insight Paul. From the outside it just looks like Linotype didn't go after them for Nimbus, but obviously now I know there is a reason behind it.

Josh_F

It would be interesting to see how often Monotype goes after smaller fish in the type design world for what they find as design infringements. Obviously direct trademark copies (like names) are much more clear cut, but maybe it is just too much of a potential resource waste to go after design-based claims.  

The only place I know that tries to keep track of any of these sort of legal related matters dealing with type is Luc Devroye's site.

Daniel Benjamin Miller

Josh_F said:

It would be interesting to see how often Monotype goes after smaller fish in the type design world for what they find as design infringements. Obviously direct trademark copies (like names) are much more clear cut, but maybe it is just too much of a potential resource waste to go after design-based claims.  

The only place I know that tries to keep track of any of these sort of legal related matters dealing with type is Luc Devroye's site.

I would imagine that there are not that many design infringements. Even similar-looking fonts are usually not SO similar as to be infringing, unless the font that is being copied is a really unconventional font. Many fonts look "kind of" like tons of other fonts; very few are exact copies.

Dave Crossland

BTW Josh, also in 2003/2004 there was a fuss in the EU about MS registering Segoe, to which IIRC Linotype successfully objected. I found quickly http://luc.devroye.org/fonts-45779.html and http://luc.devroye.org/fonts-42312.html make reference to this. 

Yves Michel

A simple question: Why re-imagine Avenir? Why update Avenir? Aren't there other ways to CREATE typefaces?

Mark Simonson

Avenir was Adrian Frutiger's reimagining of Futura. It's in the name. Of course, he didn't just tweak it, he made something new. More like, if he'd been given the job to design Futura, this is how he would have done it.