Why Fonts Cannot be Copyrighted

US COPYRIGHT OFFICE RULES FONT SOFTWARE NOT COPYRIGHTABLE

A Victory for American Freedom of the Press.

BELOW IS THE OFFICIAL SUMMARY of the US Copyright Office's September 1988 determination that font software is not copyrightable (For 6 pages of full text, see the Federal Register reference). This decision extended to font software the LONG-STANDING Copyright Office policy and clear intent of Congress that letterforms in general are not copyrightable. The implication is that font software in the form of bit maps, metric files, parametric outline descriptions, and so on may be freely copied; and that ANY COPYRIGHT ASSERTED BY THE ORIGINATOR IS NONSENSE and in fact may endanger the copyright on associated software. The Copyright Office upholds the decision as necessary to freedom of the press, since if fonts were protected by copyright, virtually nothing could be copied since most documents use licensed fonts.

It appears to me that computer users are not widely taking advantage of the benefits of this decision, probably because it has not gotten much publicity. OF COURSE THE FONT PUBLISHERS CHARGING AS MUCH AS HUNDREDS OF DOLLARS FOR A SINGLE FONT DO NOT WANT YOU TO KNOW ABOUT THE STATE OF AFFAIRS.

While fonts may be freely copied, some restrictions do apply to ancillary items. Computer programs to generate fonts are copyrightable like any ordinary software, except to the extent that they contain data for the fonts. Thus a font scaling program is copyrightable, but the font outlines used by such a program would not be, nor would the bit map or metrics output from the program.

Another restriction arises when using trademarks like "Helvetica" without permission of the owner. For example, you can copy the Helvetica font but you cannot call it Helvetica, because that name happens to be a trademark. Perhaps users could standardize on some public-domain "code names" for the trademark names of popular fonts. I have seen some software publishers using their own names for "clone" font software with a note like, "similar to Helvetica" and a fine-print trademark acknowledgement. That is, they hint that you are getting Helvetica, while skirting the trademark issue with the "similarity" language. Or, they use a synonymous name (like "Swiss" for "Helvetica"). Whether these tricks would really protect you against trademark infringement if you tried to peddle third-party fonts is an unsettled matter.

Still other restrictions on your copying font software apply if you have signed a license or other contract with the font publisher whereby you agreed to limit your copying of the fonts. Such a license might conceivably prevent you from copying or selling font software sold to you by given publisher. But anyone else whe has not signed such a contract and has gotten possession of a font could copy it freely, even if that publisher only distributes its fonts to licensees. The same would apply to attempts at trade secret protection, although it is hard to see how a font could be protected as a trade secrect since to use it is to disclose it.

Bulletin board sysops probably should check the truth of what I am saying with a "competent legal advisor" before they start a bonanza of font uploading.

Standard disclaimer: I am not a lawyer. However, when you read the summary below and look up the full text in the Federal Register, I am confident you will agree that the decision is clear and direct to the effect that fonts may be freely copied. I hope that this will permit us as users to start sharing fonts through all convenient means.

Richard Kinch
Kinch Computer Company
501 S Meadow St
Ithaca, NY 14850
Telephone (607) 273-0222
FAX (607) 273-0484

From the Federal Register, Vol 53, No 189, Thursday, September 29, 1988.

Copyright Office (Docket No. 86-4)

Policy Decision on the Copyrightability of Digitized Typefaces.

Agency: Copyright Office, Library of Congress.

Action: Notice of policy decision.

SUMMARY: The purpose of this notice is to inform the public that the Copyright Office has decided that digitized representations of typeface designs are not registrable 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 USC 101), nor original databases, nor any other original work of authorship. Registration will be made for original computer programs written to control the generic digitization process, but registration will not be made for the data that merely represents an electronic depiction of a particular typeface or individual letterforms. If this master computer program includes data that fixes or depicts a particular typeface, typefont, or letterform, the registration application must disclaim copyright in that uncopyrightable data.

EFFECTIVE DATE: September 28, 1988.

Excerpts from the full text:

...Variations of typographic ornamentation [or] "mere lettering" are not copyrightable.... "It is patent that typeface is an industrial design in which the design cannot exist independently and separately as a work of art." [Eltra Corp v. Ringer, 579 F.2d 294 (4th Cir. 1978)].

The decision in Eltra Corp. v. Ringer clearly comports with the intention of the Congress. Whether typeface designs should be protected by copyright was considered and specifically rejected by Congress in passing the Copyright Act of 1978.

...Before the advent of digitized typeface technology, arguments were made that, in creating new typeface designs, artists expended thousands of hours of effort in preparing by hand the drawings of letters and characters that ultimately would lead to the creation of an original type face design. After several years of consideration and a public hearing, the Copyright Office found that this effort did not result in a work of authorship.

... There are fewer authorship choices involved in transforming an existing analog typeface to an electronic font than in using the digitization process to create a new typeface design. Yet clearly the typeface design and the process of creating it are uncopyrightable whether the process is digital or analog.

... Typeface users ... in accordance with a congressional decision not to protect typefaces, are entitled to copy this uncopyrightable subject matter. ... The congressional decision ... reflects a concern about inappropriate protection of the vehicles for reproducing the printed word.