Copyright Registration (Any Loopholes?)

candela
candela Posts: 8
in Type Business
Hello everyone,

We could all agree, that it is very disappointing that the Library of Congress (Copyright Office) makes it an obstacle to register and protect our typefaces. However, besides a Design Patent, I am hoping we could all "Brainstorm" together a loophole in their own copyright laws, and find another way to legally copyright and protect our typefaces 

My thoughts.....

According to the laws, typefaces "alone" cannot be registered for copyright protection. In addition, most Intellectual Properties have to be published in a tangible (physical) medium in-order to be copyrightable.

That said, has someone considered gathering all of their typeface designs, putting them into a book (Physical Catalog), and then, copyright the book?

Copyrighting the physical book should legally protect all of the contents inside, including the designs and images in the book, no?

BTW, I am new here and I am so excited I found this community (message board). Looking forward to many discussions and learning from everyone on here.

Let me know your thoughts on matter.
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Comments

  • George Thomas
    George Thomas Posts: 647
    edited March 2023
    Probably everything you might think of has already been considered and/or tried. Pursuing copyright for type designs in the US isn't worth any more time and effort.
  • Cory Maylett
    Cory Maylett Posts: 248
    candela said:
    Copyrighting the physical book should legally protect all of the contents inside, including the designs and images in the book, no?
    I'm afraid that wouldn't work. The book would be copyrighted, but that wouldn't be true for the type designs shown in the book because, in the U.S., type designs are ineligible for copyright protection.

    As George Thomas said, everything's already been tried. At this point, it would take an act of Congress to fix the current mess, and that's unlikely to happen.
  • James Puckett
    James Puckett Posts: 1,998
    Has anyone tried copywriting a .glyphs file printed out and calling it source code for software? That might work better than decompiling a font with ttx and copywriting that.
  • candela
    candela Posts: 8
    The laws states:

    Quote:
    "Generally, typefaces are not copyrightable"

     I would think that "Generally" means that they are some rare exceptions. Question is, what are those exceptions?

    Last year, I submitted 3 typefaces to the Copyright office, one was approved two were rejected

    I noticed the two that were rejected were single stroke  alphabet letters, like this example:

    https://www.ebay.com/itm/275559125444

    While the one that was approved was more of an outline of the alphabet letters, like this example:

    https://www.freebiefindingmom.com/printable-bubble-letters/

    Am not sure if I just got lucky with that approval, or if it's something to explore further.

  • Cory Maylett
    Cory Maylett Posts: 248
    James Puckett said:
    Has anyone tried copywriting a .glyphs file printed out and calling it source code for software?
    Several months ago, I worked with a client's attorney who attempted what you're suggesting. I'm paraphrasing, but the copyright office rejected it, saying the code was written by already copyrighted software, making it ineligible for copyright protection.

    The attorney subsequently argued that the code for sidebearings, kerning values, metrics, and other miscellaneous information was typed by hand like a writer might use already copyrighted writing software to write a book. They rejected this argument saying an author who copyrights a story is not copyrighting the underlying code but is copyrighting the story itself. We could not use that line of logic since a work of writing is copyrightable in the U.S., but type design is not.
  • Mark Simonson
    Mark Simonson Posts: 1,739
    edited March 2023
    It's interesting that the source code to software can be copyrighted, even though a lot of it nowadays is generated automatically by interactive graphical tools for things like the UI and visual layout.

    It's conceivable that an entire working program could be created without typing a line of code. In fact, I remember a Mac app back in the '80s called V.I.P. (Visual Interactive Programing) that worked exactly this way. The "source" code for V.I.P. was entirely visual and looked like a flow chart. The only typing required was for entering values for text and numbers, just like a font editor.

    Would software created with such an app not be copyrightable?
  • John Hudson
    John Hudson Posts: 3,227
    The entirety of US Copyright Office thinking on software is about avoiding having to come to terms with the nature of software and how it is made. It is desparately and willfully avoiding engaging with new expressions of creativity and new ways of making things. I imagine they’re having panic attacks at the thought of being asked to make judgements on machine learning. On the plus side, we could probably replace the USCO with an AI and end up with a more rational approach to intellectual property.
  • Dave Crossland
    Dave Crossland Posts: 1,431
    edited March 2023
    John Hudson said:
    we could probably replace the USCO with an AI and end up with a more rational approach to intellectual property.
    Nothing coherent can be said about "intellectual property"! It is a mirage, a bundling of disparate laws which have nothing in common. No clear thinking can occur where this term is used.
  • John Hudson
    John Hudson Posts: 3,227
    edited April 2023
    ‘Intellectual property’ is a general term for something that is, in law, always specific. That doesn’t mean it is a mirage, only that the term refers to a general and broad category. Personally, it is a term I dislike, but it is the term of use when talking in general about copyright, patents, trademarks, and various kinds of registration of ownership. Hence, ‘intellectual property law’ is a thing. Does that mean that ‘intellectual property’ is a thing? Yes, in a similarly general sense, in that having copyright or being granted a patent, is a kind of property, an owned thing, and this is the general term for it. As I say, it is a term I dislike, and I am happy to ditch it if another term would aid ‘clear thinking’.

    I dislike the term because I think it is pompous, and because it invites a kind of snobbish hierarchy as seen in way bureaucracies treat different kinds of things that people make as more or less worthy of protection. I’d rather talk about something like ‘maker ownership’, proceeding from the principle that if you make something, you own it: that making a thing is one of the basic ways in which property exists and, indeed, that seems to me less controversially owned than that which law establishes as property by deed, contract, or claim. When it comes to non-unique made things, especially in the age of digital reproduction, recognition of maker ownership is what enables makers to participate in and benefit from the value that is derived from the use or sale of what they have made. In that respect, there should be no hierarchy of ‘intellectual property’ such that some kinds of made things are protected and others are not, based on what bureaucrats consider worthy of protection. Rather, the making of the thing should be recognised to establish ownership and the generation of value by the use or sale of that thing should be something from which the maker can receive a benefit. The generation of value is in itself the indicator that the ownership is worthy of protection. Bureaucracies do not ever need to ask whether a made thing is worthy of protection due to its perceived level of creativity, which is always going to reflect the biases of a particular culture at a particular time. The only question is whether someone wants to have or use the thing. I have long said that as soon as someone chooses to use one typeface over another, that is indicative of the value of typeface design and establishes the grounds of protections that enable the maker of that typeface to grant rights to its use—including, of course, the grant of a libre license if that is what the maker wants to do).


  • Cory Maylett
    Cory Maylett Posts: 248
    edited April 2023
    @Thomas Phinney, do you have any insight or speculation on why some fonts are making it through while others are rejected?

    Typeface designs are explicitly prohibited in the US, as we all know, so the alternative is to copyright the underlying code to the fonts.

    The word I've received through direct correspondence with the copyright office is that they will reject any font code written by already copyrighted software. In addition, they told the attorney I was working with that it might be possible to copyright portions of the code that were manually entered, but, again, any code written by already copyrighted font creation software would not enjoy copyright protection.

    However, as you and others have noted, some fonts do make it through, but I seriously doubt substantial portions of those fonts' code were typed in by hand. I also doubt the copyright office would know the difference anyway. The entire process seems random and arbitrary, with no rhyme or reason.

  • Thomas Phinney
    Thomas Phinney Posts: 2,896
    @Cory Maylett No, I do not have good visibility into why that is. I would love to know. It is certainly not obvious to me.

    I am quite troubled by the notion that the code is “written by copyrighted software” because somebody used a font editor to visually author that code. This seems absurd to me. It is bizarre that it would matter for copyright purposes whether one draws in the Glyph window of FontLab or edits the textual code representation of that same glyph in the Source window, when they are two different views of the same thing, synonymous and linked, such that editing either one changes the other. Further, they are deterministic, for any given representation in one, there is only one way they can be represented in the other.

    (Well, ok, the Source window also cares about the order of contours, which in FontLab is represented visually in a different place than the Glyph window, namely the Element window. But still, it is a direct correspondence between a combination of visual representations, and the code view.)

    I would be shocked if all the fonts which have been granted copyright registrations since 2018 were primarily or even substantially authored by typing text.
  • candela
    candela Posts: 8
    Pursuant to the conversation.

    Is there any way to edit the Software Generated codes, so that it doesn't run into a rejection with the Copyright Office?
  • candela
    candela Posts: 8
    edited April 2023
    candela said:

    That said, has someone considered gathering all of their typeface designs, putting them into a book (Physical Catalog), and then, copyright the book?

    Copyrighting the physical book should legally protect all of the contents inside, including the designs and images in the book, no?

    After reviewing our applications, I should add this update. Two of our Typefaces were Accepted, and Two were rejected.  However, I should note, we submitted them in a VISUAL ART application.

    Through Trial & Error, I plan on continuously submitting our Typeface applications, and appealing all rejections, and hopefully, I will figure out why they get accepted & rejected.

    Below, are the Copyright Registration numbers that were approved.

    Copyright Registration Number : VA0002290127
    Copyright Registration Number : VA0002297166

    Below, I have Copy & Pasted the details in their rejection letter-
    ________________________________________________________________

    Registration of this work must be refused because it lacks the authorship necessary to support a copyright claim.

    Copyright protects original works of authorship that are fixed in some physical form. See 17 U.S.C. § 102(a). As used in the copyright context, the term "original" means that the work was independently created by the author (as opposed to copied from other works), and that it possesses sufficient creative authorship. See Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991).

    To satisfy these requirements, a work of the visual arts must contain a minimum amount of creative pictorial, graphic or sculptural authorship; a literary work must contain a minimum amount of text.

    Copyright does not protect familiar symbols or designs; basic geometric shapes; words and short phrases such as names, titles, and slogans; or mere variations of typographic ornamentation, lettering or coloring. See 37 C.F.R. §202.1. Further, copyright does not extend to any idea, concept, system, or process which may be embodied in a work. 17 U.S.C. §102(b).

    Neither the aesthetic appeal or commercial value of a work, nor the amount of time and effort expended to create a work are factors that are considered under the copyright law. See Bleistein v. Donaldson, 188 U.S. 239 (1903); Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991). The question is whether there is sufficient creative authorship within the meaning of the copyright statute and settled case law.

    After careful consideration, we have determined that this particular work will not support a claim to copyright under the standards described above. Therefore we must refuse registration of this claim. The copyright law requires that we retain the deposit of this work. The filing fee is nonrefundable.

    Some brand names, trade names, slogans, logos and labels may be entitled to protection under the general rules of law relating to unfair competition or to registration under the provisions of the trademark laws. For information on trademark registration go to www.uspto.gov.

    For more information on copyright, please visit our website at www.copyright.gov.

    This letter is for your information only; no response is necessary.

    Registration Specialist AC
    Visual Arts Division
    U.S. Copyright Office
  • Thomas Phinney
    Thomas Phinney Posts: 2,896
    Wow, these copyrights were registered as visual art rather than as computer code. That is a whole different area!

    Honestly, I am surprised two out of four were granted, but I guess I shouldn’t be surprised by anything the copyright office does these days.   :#
  • Christopher Slye
    Christopher Slye Posts: 152
    The above letter from the Copyright Office is bizarre to me, because it seems to ignore the idea that code is protectable. Instead, it rejects the typeface because visual (non-written) work isn’t protectable. We already knew that!

    As long as other software code is being granted copyright protection, I honestly don’t understand how an exception for font software could be explained. Software developers use code editors that assist to some degree, but I don’t think anyone’s questioning the validity of non-font software.

    Should book authors have their work rejected because they accepted some text suggestions from Google Docs? If their book is written by speech-to-text software is it no longer their original creation?
  • Yves Michel
    Yves Michel Posts: 183
    For the ignorants like me on the matter of fonts copyrighting, some questions:
    • your conversation is about U.S. copyrights. There are certainly other countries where the situation is different. Could you explain?
    • what are the differences between a copyrighted typeface and a non-copyrighted one? For instance, can everyboby freely use the latter ones for commercial matters ? for private use?  
  • candela
    candela Posts: 8
    edited April 2023
    Yes, while some countries view Typefaces/Fonts as copyrightable, others do not.

    Legally, the only copyrighted works that are free for commercial use, are  if-

    1. The Author grants such permission, or
    2. The work is Public Domain (meaning the "copyright expired")

    The difference between a copyrighted work, vs a non-copyrighted work.

    If Copyrighted- It's easier to file a lawsuit, and you're eligible for Statutory Damages, Attorney Fees, and Court Cost.

    In otherwords-  The Infringer can be forced to pay Statutory Damages (of up to $150k for each offense), all your attorney fees and  and all of your Court cost.

    If not Copyrighted-  It's more challenging to file a lawsuit, and you're  eligible for Actual Damages only.

    In otherwords- The Infringer can be forced to pay Actual Damages only (If John Doe only made $100 from your stolen fonts,  you can only sue John Doe for those profits, the $100.)

    In addition, from my personal experience.

    If Copyrighted- Most attorneys will sue on your behalf  on a Contingency basis (meaning, you will have no upfront cost,  and the attorney will take his cut from the lawsuit, afterwards)

    If not Copyrighted- Most attorneys will still sue on your behalf, but you'll have to pay for the lawsuit and everything, upfront .

    You get a lot of benefits when you register your works with a governing body (copyright, patent, etc) , so at any cost, please register & protect your works.

    You will thank me later!
  • Thomas Phinney
    Thomas Phinney Posts: 2,896
    Well, the copyright application was apparently made as visual art, so that part is not the Copyright Office’s fault, in this particular case at hand. But your objection is otherwise well founded, and would seem to apply to the other rejection letter I recently read.
  • John Hudson
    John Hudson Posts: 3,227
    I think the distincion that @candela describes between copyrighted and non-copyrighted works may be more familiarly understood as between registered and non-registered copyright. You don’t have to register a copyright in order to obtain copyright protection, especially not for types of works, e.g. a novel, for which copyright protection is well-established. But as @candela writes, registering a copyright provides specific benefits.

    [I’m not a lawyer, and this does not constitute legal advice.]
  • candela
    candela Posts: 8
    edited April 2023
    John Hudson said:
    @candela describes between copyrighted and non-copyrighted works may be more familiarly understood as between registered and non-registered copyright. 
    Yes, that's what I meant and thanks for pointing that out John.
  • Yves Michel
    Yves Michel Posts: 183
    Thanks to Candela and John for the clear explanation!
  • Nick Shinn
    Nick Shinn Posts: 2,216
    edited April 2023
    One “loophole” is that you have to be constantly on the lookout for infringements (others using your Registered Trademark name or similar), and if you don’t notice them within three years, too bad.
  • Thomas Phinney
    Thomas Phinney Posts: 2,896
    @Nick Shinn That’s for trademark infringement.
    Which is of course an issue, but pretty much unrelated to and independent of copyright.

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