I read about this lawsuit recently and was wondering if anyone here has been talking about it or if there's anything that can be done to assist the plaintiff: https://slate.com/technology/2023/01/zazzle-copyright-font-blooming-elegant.html
The ramifications for font software copyright and licensing could be big if Zazzle prevails.
Also, I'm not sure if Slate's reporting is way off here or if Zazzle's lawyers are intentionally trying to muddy the waters with this ridiculous "AI" mumbo-jumbo, but isn't it pretty much impossible for that to be involved at the time that she created the font (at least as early as 2017)?
It is being held via Zoom, which if I am not mistaken is effectively a higher level of access than in the old in-person–only days, as it is easier to attend a public hearing if you can do so remotely.
I believe you can access the latest versions of the filings, and info about attending the hearing like a webinar, by following this court link: https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?11799625185403-L_1_0-1 (requires an account, but IIRC there is a charge only if you access a large number of files, and it is effectively free for casually interested people).
One could go through the actual filings of the participants and see if any of them make reference to AI.
As is often the case,* those who know the most about it are involved in some way, and likely one or more of the following apply:
That would include me; my declaration on the matter was one of the exihibits filed by Laatz in their reply to the motion for partial summary judgment, on 10 Nov 2022.
* Pun intended.
** That is, exposing thinking, analysis and arguments relevant to “their side” of the case, to the opposing side. Whichever side you favor, analyzing/discussing things in public, that both sides have access to equally early, may be helpful to one side or the other. If you care about the outcome of the case, I am not sure it is advisable to do so.
Also: apparently the case is going to arbitration, from the latest public filings. So it is entirely possible that it will settle and we will hear no more of it. (If so, that is a fairly common outcome.)
But the design can be visual art, if it shows creativity. In this case I would agree that the font has a certain level of creativity.
In the opposite a font for text like a typical "Swiss" is not visual art. There are decisions supporting this.
Yes, this is bullshit. It's also a creative hack and whoever thought of it is very smart. That's what introduces the question of wether only hand coded software can be literature. So, you see why this could be an issue for fonts?
If you go read the filings for this case you will see a very smart argument from @Thomas Phinney He first asserts that if you hand code font software the end product is indistinguishable from making the fonts with a font editor. Assuming that's true (I have no reason to disbelieve him but also can't independently verify) then his next argument is really a kicker. He says that using a font editor is no different than dictating a novel (which would be permitted a copyright).*
* Definitely. Terry Pratchet dictated his last several novels because of dementia (he lost the ability to type) and they all have copyrights.
It used to be that an important part of the design of a typeface was the specific metric values of weight and x-height that the designer deemed appropriate, the nuances of serif style, the amount of rounding at stem corners (if any).
Now that those qualities have been downloaded onto the typographer’s slider bars, it’s much harder to determine what is unique in such a typeface.
Of course, new tech enables emergent creative realms—it’s possible to come up with unique and creative design axes for a font. But still, when considering how basic the existing design axes of typography are, it does seem that static fonts are more robust intellectual property than variable fonts.
It’s a new theory of a type designer.
It’s not in law, as nobody appears to have yet addressed the matter in this light.
Though I doubt I am the first to have the thought.
The idea being that decisions made about things like x-height and weight are part of a typeface’s design. Gill Sans for instance has an Extra Bold with a much taller x-height than the Regular, this is part of its design. However, a typeface with a variable x-height downloads the responsibility for this kind of design quality from the type designer to the typographer.
How can certain multi-axis variable typeface designs be claimed unique, if they can present themselves in many different guises, some of which may be configured to imitate existing static designs? And wouldn’t such instances, even if not specifically indicated as “presets”, be considered infringements of those designs?
Intellectual property is a legal concept, its robustness—or lack thereof—determined by legislation and by the courts, and specific to particular jurisdictions except insofar as international treaties pertain. Type design has poor intellectual property protection in many jurisdictions because of how it is viewed in legislation, in the decisions of IP registrars like the US Copyright Office, and in court decisions. In none of them is there any suggestion that the design of a static typeface is more or less robustly protected than the design of a more complex design space implemented in a variable font. The realm of digital creative works is full of examples of things that do not have a single, fixed form, and that rely on user interaction to instantiate the experience of the work (computer games are the most obvious example). I am not aware of any case in which these aspects diminish the intellectual property protection for such works; indeed, one could imagine ways in which variability might introduce new avenues of intellectual property protection viz user experience design, recognising that digital fonts are no longer mere analogues of metal type.
Well then, if weight, contrast, x-height and serif style don’t determine what a type design is, but are values controlled by a multi-axis parametric font, which is in effect a typeface design tool for typographers, what is a type design?
As I said, it’s a theory about the uniqueness of type designs in different media (static and variable), and how parametric fonts will have legal ramifications. I put the crux of it in bold face. Thank you for debating it—a good argument has been known to change my mind!
The legal implications of new technology always follow after it, because Tech moves fast and breaks things.
Currently, artists are suing AI image-generators for “scraping” their work.
As the legality of parametric typefaces that can imitate static typefaces has not been tested in court, would you disagree with this statement? —Static fonts provide more robust authorship than variable fonts.
I disagree with the premise because absence of a court ruling does not imply either weaker or stronger intellectual property protection; indeed, my initial post in this thread was to point out the risk of taking a copyright claim to court: you can come away with less protection than you had when you went in.
I disagree with the conclusion because I have made both static and variable fonts, and the latter involves the same kinds of authorial design as the former plus the design of the design space and all the interactions within it that is particular to variable font development. It isn’t necessarily the case that more and novel kinds of authorial work will be given more and stronger kinds of intellectual property protection than analogues to older kinds of works, but I do think the more digital media of all kinds becomes both authorial and interactive, the greater the pressure on IP registrars and courts to actually understand these technologies and their social and market realities, rather than relying on lazy analogues to non-digital works.
1. Is it legal?
2. Is it easy?
3. Is it significant?
By using the term “robust” I was alluding to (2) fences and the safety of one’s property, not (1) Hudson’s focus on legality and policing as deterrent or punishment.
I agree with Butler that parametric fonts don’t affect the present legality of plagiarism.
I would say they make it easier to plagiarize, and to Butler’s point about requiring the original outlines, that would be easy to disguise with a little tweaking, and produce something that is identical, to all intents and purposes, if not a dead match.
But what really interests me is (3) the philosophical question of how parametric fonts pivot the significance of type design to new areas. This was incorporated in OpenType, in which alternate forms of \a and \g may be included in a typeface. Is the quality of a typeface more “robust” when it is provided with only one version of \a and \g? It would seem so, traditionally, because Helvetica with a single-storey a and double-storey \g is no longer Helvetica.
So now, when a typeface can’t make up its mind whether it has glyphic or slab serifs (to posit an extreme example), leaving it to the discretion of typographer and slider control, should they wish to depart from the default, that would indicate a lack of robustness. At least, in the traditional sense.
The effect of variable fonts on conceptions of what a typeface design is, is important historical discussion.
And as alluded to by Dave, copyright law differs between countries—certainly for fonts, in particular.