Dear Mark - Is Typeface Copyrighted?

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Is Typeface Copyrighted?

Dear Mark,
Here is my question: I'm creating a logo for a small, local business that provides a service. I want to use a font for the logo...I called someone at type foundry and they said that fonts are owned by their designer and therefore can be used if purchased for anything except a logo because of trademark laws. Most commercial and free fonts have restrictions on use. What do people usually do? I don't want to have a font created...I just want to shop for one to use! Even if the logo is trademarked - aren't you really just claiming ownership of the composition/artwork/name of the logo - not claiming ownership of the font? And...last question, if the small business isn't going to trademark the logo - then can any purchased or free font be used??? I hope you are able to get back to me on this - I am new to the graphic design business and would like to know how other people deal with this issue.

Cheers,

Trials with Type

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Dear Trials with Type ,
Your question is a doozy, and while many have assumed a clean-cut answer, even questions regarding fonts are not black and white. For clarity we will be using the word 'typeface' and not the word 'font'.

It is true that the USA Copyright Office does not copyright typeface design. However, that does not mean that typeface does not have some restrictions. Specifically in the Copyright Ruling of 1988 it says regarding typeface: Useful articles are not protected except to the extent the articles contain artistic features capable of existing separately and independently of the overall utilitarian shape. Variations of typographic ornamentation [or] "mere lettering" are not copyrightable. So, the question here is: does your logo contain artistic features capable of existing separately and independently of the overall utilitarian shape?

If your answer is "Yes" then you are dealing with something that has a copyright, and anything you create from it would be seen as a derivative. What to do? Some typefaces have been around for centuries and are open to fair use as their creators copyright has expired. Other typefaces are new or adaptations. Your instinct to contact the type foundry, which sold you the font, was the right one. Ask first, get permission. Most type foundries have user agreements printed with the disks they supply or posted online at their websites. All user agreements are not alike. Read through them and see if permission is already granted. If the foundry does not hold all the licensing to the typeface then they should be able to provide you with the name of the artist who created it.

Now you might be saying to yourself, "Hey, if I outline the typeface and make it a graphic, won't I be able to call it my own?" Not so according to The TypeRight Guide to Ethical Type Design: "The data in a font is protected by law, so you are not allowed to take it to create your own font. This misconception has encouraged piracy and the illegal production of ultra-cheap font CD-ROMs by individuals and companies that profit at the expense of original designers' efforts."

Lettering artist are underappreciated, even in comparison to illustrators and graphic artists. Just like illustrators and graphic artists they live from the licensing of their work. Negotiation over their licensing should be do the same way you negotiate with your photographer or copywriter. And as with working with any professional, you will be pleased with how easy, and affordable, it is achieving a favorable result.

Now you also might be saying, "Hey, I don't know where this font came from." That's the same as saying I don't know where this photo, illustration or logo came from. Just because you don't know the origin doesn't mean you can use it. And with technology it is getting easier all the time to see where the typeface came from. Look at the information file for source information. Should that fail a number of font foundry websites have OCR search engines which can help you. My personal favorite is MyFonts.com's What the Font?! which has helped me countless times.

Okay, so the short answer is: it's typically permissible to use typefaces in brochures, books, magazines, and other enlightening, and informative works because the typeface is being used as typeface. But specialty uses are going to require that you do a little homework. And be sure read that user agreement which comes with your font.

I hope that helps,

Mark Monlux, Ethics Chair

DISCLAIMER: To the best of my action or belief the material posted on "Dear Mark" discusses general principles of law in response to issues of concern to the illustration community. Nothing posted by Mark Monlux should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case. Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.

Reference:

>From The Copyright Office, Library of Congress Part 202 - Registration of Claims to Copyright 202.1 Material not subject to copyright.

The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained: (a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents;

(b) Ideas, plans, methods, systems, or devices, as distinguished from the particular manner in which they are expressed or described in a writing;

(c) Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information;

( d) Works consisting entirely of information that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources.

(e) Typeface as typeface. [24 FR 4956, June 18, 19 59, as amended at 38 FR 3045, Feb. 1, 1973; 57 FR 6202, Feb. 21, 1992]

>From Southern Software, Inc's Font Myths Website The Copyright Office ruling of 1988 The Copyright office has decided that digitized representations of typeface designs are not registerable under the Copyright Act because they do not constitute original works of authorship. The digitized representations of typefaces are neither original computer programs (as defined in 17 U.S.C. 101), nor original databases, nor any other original work of authorship. To be registerable and copyrightable, a work must constitute an "original work of authorship. 17 U.S.C. 102. Useful articles are not protected except to the extent the articles contain artistic features capable of existing separately and independently of the overall utilitarian shape. Variations of typographic ornamentation [or] "mere lettering" are not copyrightable. 37 CFR 202.1(a). In Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978)

>From Typeright.org's website The TypeRight Guide to Ethical Type Design III . The role of the type designer B. Artistic Information 2. Protection of font data Right now, there's a misconception that because U.S. copyright law does not protect a typeface's design, then it does not protect the font data either. This is not true. The data in a font is protected by law, so you are not allowed to take it to create your own fonts. This misconception has encouraged piracy and the illegal production of ultra-cheap font CD-ROMs by individuals and companies that profit at the expense of original designers' efforts.

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