Tuesday, August 10, 2010

Protecting Typeface - A Design Patent Monopoly?

As discussed in previous posts within The Ordinary Observer, software is rich with intellectual property rights. Although not often discussed, fonts[1] are one aspect of software that reveals an interesting interplay between branches of U.S. intellectual property law.

Given that U.S. copyright law protects “original works of authorship” including “pictorial” and “graphic” works, one might assume that U.S. copyright law could be used to protect typefaces. Indeed, in some countries, (perhaps most notably the U.K.) typefaces are protected by copyright law. However, the U.S. Copyright Office refuses to register copyrights in typefaces. The Office argues that under U.S. copyright law fonts per se are not subject to copyright and, according to the rules promulgated by the Office, “typeface as typeface” is not protectable. 37 CFR 202.1(e).

Courts appear to agree. For example, Eltra Corporation v. A Ringer held that typefaces, as such, are not protectable under U.S. copyright law. The court stated the following while flatly dismissing the argument that U.S. copyright law should protect a particular typeface, “Under Regulation 202.10(c) it is patent that typeface is an industrial design in which the design cannot exist independently and separately as a work of art. Because of this, typeface has never been considered entitled to copyright under the provisions of § 5(g).”

Yet within the realm of computer technology, the data that implements a typeface, i.e., a font, is (like most other software) subject to copyright. For example, Adobe vs. Southern Software, Inc. held that scalable fonts (such as TrueType font implementations are software and therefore subject to copyright protection under U.S. law). It is this protection of fonts that developers of open source fonts, such as the Liberation fonts, use to give legal basis to their licenses.

Nevertheless, protecting typefaces via the software that implements them is an incomplete solution. Design patents can be used to fill this gap. MPEP 1504.01(a) III. Design patents protect the actual typeface of the font itself, regardless of how the shapes that make up the typeface are rendered. For an example, D570903 is directed toward a numeric font. Thus, under U.S. law, design patents provide an important means for protecting a typeface that is the essence of a font.

[1] Font data is used by a computer system to render characters that subscribe to a particular typeface. A typeface, in contrast, is a specification of the shapes and markings that make up a particular group of characters. Thus, a typeface is a design specification that exists outside of, and extends beyond, any particular implementation of the typeface, e.g. a font.

1 comment :

  1. I was pretty surprised to find out that the first design patent ever granted (U.S. Patent D1) was for a new font. http://www.google.com/patents/USD1?printsec=description#v=onepage&q&f=false