Laatz v. Zazzle

Michael O'Laughlin
Michael O'Laughlin Posts: 6
in Type Business
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)?
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Comments

  • John Hudson
    John Hudson Posts: 3,227
    From reports, this looks to me like it could be a straightforward license enforcement case, and the plaintiff’s lawyers are risking more than they might realise by adding a copyright aspect to the case. Intellectual property protection for type design and fonts is very weak in some jurisdictions, and adverse case law can make it weaker. If the defendant has to defend against a copyright claim, their lawyers will almost certainly do so by attacking the viability of the claim.
  • James Puckett
    James Puckett Posts: 1,998
    What will kill our jobs first: AI or Zazzle winning this lawsuit? I was that sentence was a joke.
  • JoyceKetterer
    JoyceKetterer Posts: 813
    edited February 2023
    I agree with @John Hudson.  It feels like a rookie mistake from lawyers who don't understand fonts.  I have refined strategies for keeping this from happening.  I wish they had reached out to me for a strategic consolation.  I'm not super worried that it will be existential to the industry.  But I feel for the situation and could have helped if I'd been asked.   
  • Thomas Phinney
    Thomas Phinney Posts: 2,896
    edited February 2023
    Just to clarify, that was not intended to rebuke anybody who posted before I did! I spent a while writing all that and some posts got in ahead of mine, which I did not see until afterwards.

    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.)
  • John Savard
    John Savard Posts: 1,135
    Michael O'Laughlin said:
    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)?

    From reading the article, it seems to me that the references to "AI" aren't to the recent ability of deep learning systems to design fonts, but instead things like a TrueType font isn't copyrightable in the United States, since typefaces aren't copyrightable, if stuff like the hinting code in it was generated by a font program.
    Since the vectors were drawn by hand, this claim is still specious.
  • Helmut Wollmersdorfer
    Helmut Wollmersdorfer Posts: 212
    Most European jurists mean, that fonts are not software, thus the copyright for software doesn't apply.

    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.
  • JoyceKetterer
    JoyceKetterer Posts: 813
    edited February 2023
    In the US font designs can't be copy written, this is not in dispute (it's like food recipes).  Software can be copy written.  However, software is not it's own category.  So, software is copy written as literature. 

    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.  
  • Mark Simonson
    Mark Simonson Posts: 1,739
    (Sorry to nitpick, but I think it's "copyrighted" not "copy written".)
  • JoyceKetterer
    JoyceKetterer Posts: 813
    No, @Mark Simonson, thank you.  I knew it was wrong but I couldn't figure out how to get it right.  I'm dyslexic and sometimes that happens.
  • Mark Simonson
    Mark Simonson Posts: 1,739
    And I'm a little OCD. :smile:
  • Nick Shinn
    Nick Shinn Posts: 2,216
    edited February 2023
    The variable format has opened an intellectual property can-of worms.
    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.
  • John Hudson
    John Hudson Posts: 3,227
    it does seem that static fonts are more robust intellectual property than variable fonts.
    Where? In what jurisdiction? Is this tested in case law? Is this the opinion of an intellectual property lawyer?



  • Nick Shinn
    Nick Shinn Posts: 2,216
    edited February 2023
    Where? In what jurisdiction? Is this tested in case law? Is this the opinion of an intellectual property lawyer?

    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?
  • John Savard
    John Savard Posts: 1,135
    Nick Shinn said:
    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.
    I will have to admit that I disagree. To me, the way that the weight might change as the numerical parameter for the weight is altered is just one additional creative element in the design, a curve that is every bit as much a part of the font as the curves that make up a letter.
    So a font with one variable parameter is now a collection of three-dimensional objects instead of a collection of two-dimensional glyphs.
    By defining how the variable parameter works, you have made decisions about the aspect of the typeface it affects at each value of the parameter.
  • John Hudson
    John Hudson Posts: 3,227
    Nick, you claimed ‘The variable format has opened an intellectual property can-of worms’, but now acknowledge that no one has addressed the matter in a legal context. You further claimed, in alarmingly bold type, that ‘it does seem that static fonts are more robust intellectual property than variable fonts.’

    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.
  • John Butler
    John Butler Posts: 297
    edited February 2023
    Here’s a way to conceptualize a variable font in terms of intellectual property. I’ll begin with a bunch of stuff you obviously already know, whether you would think to articulate it this way or not.
    A non-variable outline font is a two-dimensional collection of spline control points describing its outlines, additional data describing its hints or instructions to modify outlines during rasterization, additional metrics and kerning data to make the glyphs interact and combine according to a deliberate design, and various metadata.
    The font constitutes a program to rasterize its bitmaps. The font program runs inside a separate more general purpose rasterizer, just like copyrightable Python code running in a Python interpreter, and the rasterizer in turn outputs bitmap data at an arbitrarily specified size.
    This output is a derivative work, whether judges and lawyers and juries and arbitrators agree or not—“I don’t mean to brag, but I’m not a lawyer.” Generally speaking a bitmap output at a specific ppem requires a unique combination of outlines, metrics and hints that can only come from the copyrighted font code. Dumb counterexamples might include a simple rectangle with different coordinates nudged one way or another via hints or instructions to match the raster output using different source vectors, but in practice such a thing would require such deliberate effort that it would itself constitute a derivative work prohibited in a EULA.
    A copyright holder has an ownership claim against all derivative works not otherwise falling under fair use. Actually enforcing such claims introduces the usual hazards of lawyers and judges getting paid, etc.
    A single-axis variable font (weight or optical size, for example) is simply a three-dimensional analogue to a two-dimensional outline font. You have, in the simplest case, a second two-dimensional layer of outlines defined by points, and the rasterizer performs a smooth linear or otherwise f(z) interpolation between those two layers. The nature of the outline data as a computer program has not changed; it simply grew in complexity. It still needs the original one-dimensional masters defining each axis in order to output the rasterization. The resulting rasterization remains a derivative work, and in fact, the resulting variable interpolation instance also remains a derivative work, because it could not exist without the specific masters.
    (I wish I had a picture of the pyramid-frutsum looking solid I have in mind of a hairline H on the top surface morphing into the ultrablack H on the bottom surface. I swear I’ve seen such a thing before, probably a different letter.)
    By extension an n-axis variable font is simply an n+1-dimensional analogue to a standard outline font. At this point you might be asking juries and judges to visualize 4-dimensional hypercubes, and I realize there’s a certain futility creeping in by now, but it still makes sense when you think about it. I cannot generate an instance of Trajan by twiddling the axes of Decovar, however much I try.
    Please forgive any inaccuracies in my armchair bloviation, and do not use it to operate machinery or provide medical care.
  • John Butler
    John Butler Posts: 297
    Also, I seem to recall that Minion and Myriad are examples of 30-year-old variable fonts with both copyrights and design patents, back when “variable” was called “multiple master.”
  • Nick Shinn
    Nick Shinn Posts: 2,216
    edited February 2023
    John Savard:

    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?

    John Hudson:

    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.

    I am not aware of any case in which these aspects diminish the intellectual property protection for such works;

    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. 
  • Nick Shinn
    Nick Shinn Posts: 2,216
    edited February 2023
    John Butler:
    in practice such a thing would require such deliberate effort that it would itself constitute a derivative work prohibited in a EULA.
    That is exactly what I was thinking of: that it would be possible to plagiarize a static design by deliberately burying it at some intersection of variable axes. 
  • John Butler
    John Butler Posts: 297
    edited February 2023
    That is exactly what I was thinking of: plagiarizing a static design by deliberately burying it at some intersection of variable axes.
    An interesting idea: plagiarize the instance “from the inside out” and publish the variable font’s extrapolated axes only, to arrive at the instance only through interpolation.
    This still requires the original outlines from whence to derive the extrapolations, so it remains a derivative work.
    If I print out the glyphs of Trinité and then autotrace them in a vector program, and then I reassemble them into a new font, the result still remains a derivative work of Trinité.
  • John Hudson
    John Hudson Posts: 3,227
    edited February 2023
    Me:
    I am not aware of any case in which these aspects [not having a single, fixed form; relying on user interaction to instantiate the experience of the work] diminish the intellectual property protection for such works.
    Nick:
    Currently, artists are suing AI image-generators for “scraping” their work. 
    Indeed, but that has nothing to do with what you appeared to be talking about, which is variable versus static fonts in the context of typeface design as intellectual property.

    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 would disagree with it (also, I think you are moving the goalposts).

    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.
  • Nick Shinn
    Nick Shinn Posts: 2,216
    edited February 2023
    To clarify the issue of derivation:

    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.   
  • JoyceKetterer
    JoyceKetterer Posts: 813
    Guys, this is probably not a good conversation to have in a permanent public forum.  if it's really a problem you're handing bad actors a blue print.  Can we get a moderator to delete these off topic posts?
  • Nick Shinn
    Nick Shinn Posts: 2,216
    edited February 2023
    I didn’t think I was off topic, which is copyright.
  • Michael O'Laughlin
    Michael O'Laughlin Posts: 6
    Thank you everyone for the enlightening conversation. It sounds like the Blooming Elegant issue is in capable hands, so I am feeling a certain sense of relief, even if we never find out the exact outcome. 
  • Dave Crossland
    Dave Crossland Posts: 1,431
    I disagree with deleting the posts. 

    The effect of variable fonts on conceptions of what a typeface design is, is important historical discussion.
  • Dave Crossland
    Dave Crossland Posts: 1,431
    John Butler said:
    If I print out the glyphs of Trinité and then autotrace them in a vector program, and then I reassemble them into a new font, the result still remains a derivative work of Trinité.
    Not under USA copyright law, AIUI, IANAL
  • Thomas Phinney
    Thomas Phinney Posts: 2,896
    It is certainly important to keep in mind that the phrase “derivative work” is coming from copyright law, so it is best to use some other phrase if you mean those words in any other way. That is, anything other than “things that would be considered derivative works under copyright law” should use some other phrase than “derivative work,” for clarity.

    And as alluded to by Dave, copyright law differs between countries—certainly for fonts, in particular.
  • John Butler
    John Butler Posts: 297
    I understand that, and I attempted to make that clear in my very first use of that phrase in this thread.
    US IP law needs a complete overhaul, and When Elected I Promise to deliver such a fantasy.

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