Thoughts on Web Licencing

I've been researching the various means to embed fonts on the web off and on lately, and aside from giving me a headache with its numerous options and implementation methods, there was something about it that didn't sit with me. Foundries are starting to charge extra for the right to embed fonts on the web. I'm sure you're all aware of this by now, and from the lack of discussion about it that I could find here, I'd suppose you range from okay with it to gung-ho.

Before I go on, let me say that I am an aspiring type designer who would, if it were viable, prefer to make a living on that alone. I have not, however lost touch with the needs, wants and rights of the consumer. Therefore, I can't feel right about this "give them the car, sell them the gas" policy. Incidentally I also believe that every typeface should be available free for non-commercial uses, though that's just an ideal of my own and I respect others' option to charge for it.

There used to be a time when you owned something after you bought it.

Tristan Bowersox's picture

@k.l. I used the term proprietary because I was responding to someone else who did. It had nothing to do with any of its connotations. I know you understood my statement and are merely dissecting my grammatical choices for the sport of it. That's okay, I guess, though it does represent yet another derailment of the thread.

Here was the post: butterick > The customer has no rights to use a font except those that the foundry grants as part of the license. That's the standard model for all proprietary software. Sorry to be a nitpicker, but there's enough Typophile threads that are polluted with urban legends like these.

"As to the original question, ..."
Did type designers struggle to survive before they started charging for web rights of their non-hinted fonts? I know there have been a lot of side discussions, but if you are truly responding to the original question*, this is what you are implying.

*With one tweak I made to it within the fist ten posts or so, I think.

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@JHudson: I see what you're getting at now. Compare it to other fields, though. For programmers who create proprietary products and formats, they may have continuing goals, but they solve the problem in an entirely new way—which is what makes it proprietary. Even graphic artists are always seeking out new visual languages**. We have only one language (excluding dingbats I guess). If we took another swing at the English alphabet, that would be parallel to creating a proprietary program. We could cut out 'c' and 'q,' maybe bring back Thorn, if we're feeling fancy, or just change the symbols for all the existing letters, optimizing them for maximum differentiation.

Additionally, the differences in type that you're talking about are not strictly proprietary. Anyone can use those ideas in his own font—if he wants to put the work into making a font that already exists. New ideas in fontography are increasingly rare—especially in text fonts. No one ever responded to my query about the legality of ripoff fonts, but as someone in another thread mentioned, the shapes of a font are not protected, only the file itself***.

**Or at least tweaking them.

***I know I said I wasn't interested in the legal issues, but I also think this is the right way to handle it.

Jens Kutilek's picture

I think you (Tristan) and Matthew mean way different things by »proprietary«. As you keep using the word, you should settle on a definition first ...

Si_Daniels's picture

>Did type designers struggle to survive before they started charging for web rights of their non-hinted fonts?

I think the answer is clearly yes. Type designers struggle to survive, and very few earn enough for type design to be their sole source of income. @font-face represents a new market, which may help them devote a greater proportion of their time to designing type. Income may come from selling extended licenses, doing paid work for Google, offering their work through service providers like typekit, or doing custom work for corporate clients. Open-sourcing some fonts may be part of that business strategy.

SebastianK's picture

For programmers who create proprietary products and formats, they may have continuing goals, but they solve the problem in an entirely new way—which is what makes it proprietary.

I think I know what you mean, but you should phrase that differently. "Solving problems in a new way" sounds like they're doing something clever and great. "Creating incompatibilities to tie clueless users to their software" better represents the practice of creating proprietary formats. As for any software itself, rarely does it solve any new problems, let alone in new ways. Writing good code may require some brains, but clever ideas shouldn't entitle you to anything.

That said, I think Sii is right. You have yet to come up with a business model that allows fontographers to support a family and at the same time gives users unrestricted rights. I don't think there is one, because most people are like my grandparents: "You draw what? Letters? And you get paid for that?"

In all seriousness, why don't you just go and occupy "ethical licensing" as your personal market niche? After all, it's still a market, with competition and all, and maybe your model will give you an edge over the rest?

Tristan Bowersox's picture

"Creating incompatibilities to tie clueless users to their software" better represents the practice of creating proprietary formats. | Quoted for truth, but I was giving them the benefit of the doubt because Butterick was referencing the practice as analogous with type design. Judgement calls regarding proprietary formats seemed extraneous.

In all seriousness, why don't you just go and occupy "ethical licensing" as your personal market niche? After all, it's still a market, with competition and all, and maybe your model will give you an edge over the rest? | Well, I'm a ways off from occupying any market (I with the critique thread for Albuquerque Regular got this much attention), but I may very well do that. Let me restate my views on business models for font licencing...

Here are my suggestions:
- Make multiple versions of a font—Basic, Pro, maybe Web if it's not included in Pro
- If you make something called a Web Font, it had better be hinted
- Charge based on the amount of work put into each
- Make the licences identical—what they are paying for is the file
- (The thing I like about this method is that you don't have to rely on other people. It's self enforcing, except for people's ability to copy the file. But you have to just accept that no matter what you do. Also, if you have a basic version available, that's all most people who are inclined to steal fonts want anyway. I hope that people operating on a professional level are not as insensitive, but, again, it's an occupational hazard.)

Here are my opinions:
- It is reasonable to limit the number of users
- It is unreasonable to limit the applications
- If they want to embed or create a .woff, that's their business
- If they want to use it poorly, that's their business
- If they want to buy a $900 dress and make it into a toilet seat cover...
- I think you can tell where this is going

Here are my preconceptions:
- There is no hope for a type designer to make a living solely on that trade
- Type designers are under-appreciated and not respected by most people
- I can not comment on whether type designers are under-paid, because that is a very complex question that could only be easily calculated in situations where a salary is being paid.
- Font licences are often ignored

I think you (Tristan) and Matthew mean way different things by »proprietary«. As you keep using the word, you should settle on a definition first. | Good call. I'll get back to that when I don't have a headache :)

John Hudson's picture

Here are my preconceptions:
There is no hope for a type designer to make a living solely on that trade

I'm sorry, but I don't have a very polite way to say this: you don't know what you are talking about. There are plenty of people who make a living solely as type designers. Some of them not only make a living at it, they employ other people and pay them a living too.

The fact that you appear to treat it as a hobby and a way to make beer money doesn't mean that other people don't treat it as a profession. They are called professionals, and by your comments you have identified yourself as an amateur. That's fine, there is nothing wrong with amateurs and hobbyists, many of whom are talented and some of whom could, if they chose to, become professional. But amateurs generally shouldn't go around lecturing professionals about how to do their job, let alone telling them that the job doesn't exist.

Stephen Coles's picture

- Make the licences identical—what they are paying for is the file
- It is reasonable to limit the number of users

I haven't heard your response to my post near the beginning of this thread:

That price is most fairly determined by the size of the user, be it a single blogger or a Fortune 500 company with a popular website.

A fee system that measures use is more fair than one that measures users.

Tristan Bowersox's picture

@John Hudson: My comments were clearly labeled. I have nothing to apologize for.

...by your comments you have identified yourself as an amateur. | Was it this one? "I am an aspiring type designer"

@Stephen: I never saw that comment... Do any type designers do it this way now? (Have I not been reading font licences closely enough?) I have heard of exclusive rights, of course, which is something only a large company would want or could afford, but are most fonts licenced to limit the extent of use? (or are you just suggesting they should be?)

What are the other resources large companies pay more for? Programs have to be available for many users, but unless the fonts need to be available for all the employees, the company would at most only need enough for each member of their graphic design dept. (if they have one). When they pay for graphic design, they pay more just because they want the best. Design firms might charge based on how much they think they can squeeze out of a client, but not all of them. I have not heard of a design firm charging based on the extent of use, but I'm starting an internship at one today so I'll ask them. On the other hand, I guess that would be a royalty, so maybe I have...

Okay, so if we're talking about royalties, it makes sense to compare with music. A company would pay every time a piece of music is used, and the amount of work put into a font is comparable to producing a song...

Here's something that throws a monkey wrench in the gears, though. If a design firm owns a font, aren't they allowed to use said font on behalf of their clients? I couldn't find anything about it in the licences from MyFonts, though. Could someone elaborate on this?

And once again, that "proprietary" definition is forthcoming.

k.l.'s picture

Was it this one? "I am an aspiring type designer"

Nope. The "by your comments" refers to about everything you said and how ...

And once again, that "proprietary" definition is forthcoming.

There is no need for it. Just look up what 'proprietary' means and use the term properly. And if you mean something else, use a more appropriate term. If you speak about originality/newness in type design, then just call it so.
Addressing your other comment, I do not have the time to argue "for the sport of it". Also it does not matter much whether you introduced a term or anyone else did – it is up to you to pick it up (or not) and (once you decide to do so) to use it properly. Which you didn't, including in this other comment (your reply to John Hudson in the second half of it) when you continue abusing the term in question.

Nick Shinn's picture

Design firms might charge based on how much they think they can squeeze out of a client, but not all of them.

Dude, you should get over being so cynical, and transcend the notion that the ethics of business is deciding where to draw the line between ripping off clients and altruism.

As Elbert Hubbard put it:

… the first requisite in success is not to achieve the dollar, but to confer a benefit … the reward will come automatically, and usually as a matter of course.

The benefits of @fontface and the gazillion web fonts it has spawned are increased selection, availability and low cost.
Sure, there are quality issues, but three-out-of-four in the tetrad of Price/Quality/Selection/Delivery ain't bad.
Quality is always an issue at first, which is why the edge bleeds.
Quality will improve (better rasterization, better resolution, better auto-hinting), but in the meantime the early adopters who are most discriminating and assiduous in their use of web fonts will be able to offer a genuine benefit to their clients, and they will flourish.

butterick's picture

Butterick was referencing the practice as analogous with type design. Judgement calls regarding proprietary formats seemed extraneous.

Tristan, I was not drawing an "analogy" between the world of fonts and the world of proprietary software. I was pointing out that most fonts are proprietary software. This is a fact.

Compare it to other fields, though. For programmers who create proprietary products and formats, they may have continuing goals, but they solve the problem in an entirely new way—which is what makes it proprietary.

Not true at all.

More broadly, if your contrarian views on font licensing depend on redefining common terms, that's a major flaw in your reasoning. (Not the only major flaw, by the way.)

John Hudson's picture

Tristan, as Karsten points out, it is everything you have written that I thought identified you as an amateur, not a specific statement. Re-reading, though, I note

I am an aspiring type designer

and later

There is no hope for a type designer to make a living solely on that trade

which makes me wonder if you are yet an amateur, or only aspiring to become an amateur, since apparently having type design as a profession is beyond hope (which in turn makes me wonder what it is that I have been doing for the past seventeen years).

Seriously, you don't know what you are talking about and are coming across as kinda foolish. You're talking to some type design professionals here, people who make a living doing this, and do know what they're talking about even though they often disagree. When David Berlow or Matthew Butterick say something -- even if I have trouble figuring out what David means a lot of the time and sometimes disagree -- I take it seriously because they have years of experience and a body of work to back it up. I'm sorry, Tristan, you don't have the basis of experience and knowledge to be making the kind of pronouncements you are spouting. Now, I won't hold this against you, because in 1994 I was young and inexperienced and shouted my mouth off on the comp.fonts newsgroup, but I reckon no one had grounds to take me seriously until about 1998, by when I'd actually done something. I look forward to the day when I can take you seriously.

Tristan Bowersox's picture

Butterick: Tristan, I was not drawing an "analogy" between the world of fonts and the world of proprietary software. I was pointing out that most fonts are proprietary software. This is a fact.

Dictionary: having analogy; corresponding in some particular: A brain and a computer are analogous.

You did and continue to present proprietary software as analogous with fonts. They are not literally software.

Not the only major flaw, by the way. | Please continue. The ratio of snark to useful comments in this thread is sad.

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k.l.: Just look up what 'proprietary' means and use the term properly. And if you mean something else, use a more appropriate term. If you speak about originality/newness in type design, then just call it so. ... it does not matter much whether you introduced a term or anyone else did – it is up to you to pick it up (or not) and (once you decide to do so) to use it properly. Which you didn't, including in this other comment (your reply to John Hudson in the second half of it) when you continue abusing the term in question. | I realize my delay in defining the term is suspicious, but can you not assume the worst about me—just for the sake of a civil conversation? We all use words based on the definition we have in our heads. The reason I hesitated to post the definition I was using was that I wanted to give a thorough presentation of the way I was thinking of it, the way the definition defines it, and the connotations it has in the context of software. You should be aware that the connotations of a word make its use more complex than its meaning alone would, and that they are often more important. I, being aware of this, looked up both the Wikipedia article on proprietary software and the dictionary definition of proprietary. I found that the definition "Belonging to a proprietor" was less than helpful, and was thus discouraged. I also had a headache, so I procrastinated my quest.

My apologies as well for assuming this to be a civil discussion among equals, and thus that I would be allowed some fair leniency. It is apparently more akin to a hearing.

I might point out that in your post you "picked up" both 'amateur' and 'proprietary' (the latter by implying a contrary opinion about it) without offering a definition for either. (How about being proactive?) Also, somewhat incidentally, the paragraph you refer to actually kind of comes close to defining what I meant by proprietary, but I'll get to that presently...

Here are my thoughts on the word "proprietary" (which I am now sick of hearing)...

Firstly, I will describe my understanding of it at the time I used it. Something that is Proprietary is both unique and can not be legally simulated by the competition. A proprietary format is one used solely by a particular program (though, technically, some such formats do get picked up by third parties, such as .doc, which can be opened and saved by OpenOffice"). John Hudson was using only the first half of this when he said that a font's proprietariness (paraphrasing here) is what makes it valuable; this is what I was pointing out when I said "the differences in type that you're talking about are not strictly proprietary." At this point, I admittedly should have supplied my definition in a more strict fashion, but I merely elaborated thusly: Anyone can use those ideas in his own font—if he wants to put the work into making a font that already exists.

From the dictionary (5th entry): manufactured and sold only by the owner of the patent, formula, brand name, or trademark associated with the product: proprietary medicine.

This is kind of vague, and fails to explain the commonly understood term "proprietary format" since formats are not sold, but it was the most relevant definition of the six. None of them came close to supporting Hudson's claims, but they also came short of fully justifying my own.

From the Wikipedia article "Proprietary Software": Proprietary software is computer software licensed under exclusive legal right of the copyright holder. The licensee is given the right to use the software under certain conditions, but restricted from other uses, such as modification, further distribution, or reverse engineering.

The type of associated licence agreement is indeed similar to those of fonts, probably justifying some people's arguments, but I can't remember whose.

From the Wikipedia article "Proprietary Format": A proprietary format is a file format where the mode of presentation of its data is the intellectual property of an individual or organization which asserts ownership over the format. ... Proprietary formats are typically controlled by a private person or organization for the benefit of its applications, protected with patents or as trade secrets, and intended to give the license holder exclusive control of the technology to the (current or future) exclusion of others.

This gives some credence to my "can't be legally simulated" clause, and in all of these I think it's fair to say that uniqueness is implied [waits for off-topic flamewar].

Lets look back at my first use of the word, which was to say that type design is based on the superficial redesign of an non-proprietary catalog of symbols—an act, the idea of which I mistakenly referred to as unproprietary, confusing some. This was in response to Buttericks assertion of the similarity between proprietary software and fonts. I maintain that thinking of fonts as proprietary is at the very least ironic, and is not supported by the law. I'll repeat my previous statement regarding this:

Additionally, the differences in type that you're talking about are not strictly proprietary. Anyone can use those ideas in his own font—if he wants to put the work into making a font that already exists. New ideas in fontography are increasingly rare—especially in text fonts. No one ever responded to my query about the legality of ripoff fonts, but as someone in another thread mentioned, the shapes of a font are not protected, only the file itself***.

**Or at least tweaking them.

***I know I said I wasn't interested in the legal issues, but I also think this is the right way to handle it.

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Myself: Design firms might charge based on how much they think they can squeeze out of a client, but not all of them.

Nick: Dude, you should get over being so cynical, and transcend the notion that the ethics of business is deciding where to draw the line between ripping off clients and altruism.

*sigh* I said "might." I was giving a tentative example of a business that might charge based on "the size of the user" as Stephen put it. I can buy that you are merely passionate about these issues to a point, but as you devote more of this thread's space to vitriolic sniping, it becomes harder for me to assume the best about you.

Elbert Hubbard, via Nick: … the first requisite in success is not to achieve the dollar, but to confer a benefit … the reward will come automatically, and usually as a matter of course. | This is fantastic advice and relevant to the conversation. Thank you for posting it.

The benefits of @fontface and the gazillion web fonts it has spawned are increased selection, availability and low cost.
Sure, there are quality issues, but three-out-of-four in the tetrad of Price/Quality/Selection/Delivery ain't bad.
Quality is always an issue, which is why the edge bleeds.
Quality will improve (better rasterization, better resolution, better auto-hinting), but in the meantime the early adopters who are most discriminating and assiduous in their use of web fonts will be able to offer a genuine benefit to their clients, and they will flourish.
| I agree with all of this as well.

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Sorry if I missed any points, but I really need to be going now. Let me just remind you all that I appreciate your contributions that are on-topic. I am enjoying the discussion and am eager to consider your contrary views.

Nick Shinn's picture

…as you devote more of this thread's space to vitriolic sniping…

You must have me confused with someone else! — other than explaining my (foundry's) policy, I've tried to address the ethical issues you're dealing with.
For vrai vitriol, check out some archival Typophile Shinn vs. Papazian bouts :-)

Stephen Coles's picture

Do any type designers do it this way now?

Yes, webfonts offer the opportunity to charge a fee based on pageviews or bandwidth, which is what most webfont providers are doing. This use based system is more equitable than the user based system of desktop fonts in which a single designer at CNN could buy a $35 license and produce work that would be seen by millions while a lowly blogger is paying that same fee.

Richard Fink's picture

It's important to note that, while the Wright Brothers were strictly amateurs, the Marx Brothers were polished professionals.
This is key.

Nick Shinn's picture

Wright Bros, professional printers and garage (bicycle shop) proprietors, prior to their aeronautical business venture.
Marx Bros, home-taught entertainers, whose Uncle got them their first vaudeville gig.
This too is key.

butterick's picture

civil discussion among equals, and thus that I would be allowed some fair leniency. It is apparently more akin to a hearing

Dude, you can't expect to go onto a discussion board populated with professional typographers and expect a safe haven for flagrantly incorrect statements of fact and law.

You did and continue to present proprietary software as analogous with fonts. They are not literally software.

Not true. You are confounding font designs and font software. In the US, the design of a font is not copyrightable. (A font design can be patented, but that seldom happens.) But the instantiation of the font design as a digital file, including the placement of the points, and hinting, is copyrightable software. Moreover, unless the designer chooses some kind of open license, these font files are proprietary software.

Proprietary is both unique and can not be legally simulated by the competition

Not true.

From the Wikipedia article "Proprietary Software": Proprietary software is computer software licensed under exclusive legal right of the copyright holder. The licensee is given the right to use the software under certain conditions, but restricted from other uses, such as modification, further distribution, or reverse engineering.

That's an accurate definition. Note there is no reference to uniqueness or whether something can be simulated by the competition.

And this all goes back to the original posting — your opinions about how webfonts should be licensed seemed to be based on a misunderstanding of what rights font foundries are entitled to assert. But having received some excellent clarifications, you're still contending that "proprietary software" means something different than it does, and that fonts aren't proprietary software.

I'm reminded of the joke: What do you tell a man with two black eyes? Nothing, because he's already been told twice.

This was in response to Buttericks assertion of the similarity between proprietary software and fonts. I maintain that thinking of fonts as proprietary is at the very least ironic, and is not supported by the law

Too bad we don't have a lawyer on this board to clarify these things.

Miss Tiffany's picture

Too bad we don't have a lawyer on this board to clarify these things.

Laugh out loud.

kentlew's picture

Tristan — On the off chance that you are not aware of this fact: Matthew Butterick is both a published type designer and a practicing lawyer.

I say this not because it conveys on him any particular infallible authority, but in the hopes that it will invite you to lend his comments greater credence than perhaps you’ve been granting them so far.

Si_Daniels's picture

>Laugh out loud.

One more outburst like that and I’ll have you disbarred :-)

oldnick's picture

"Reimagine" is a weasel word if ever there was one. Imagination is an intensely personal process, and cannot be redone by another individual, any more than one can reinvent the wheel, nor re-envision anything. In all of the previous noted instances, someone else has already done the heavy lifting; the person claiming to re- anything is merely repurposing someone else's ideas and claiming them as his or her own.

Richard Fink's picture

@kentlew

"I say this not because it conveys on him any particular infallible authority, but in the hopes that it will invite you to lend his comments greater credence than perhaps you’ve been granting them so far."

Why? His being a lawyer says nothing about what he knows or doesn't know about the claim of copyright privilege as it applies to fonts. He's just another Joe sounding off on this thread.
Bounce over here to find out why.

@butterick
What kind of law do you practice, BTW?

Rich

Tristan Bowersox's picture

@Stephen: Interesting. Is this being used by one or more specific embedding methods? In some ways it sounds reasonable, but in some ways it does kind of feel like trying to squeeze as much money out of a buyer as possible, you know? I can see it both ways. Thank you for remaining civil, by the way.

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@oldnick: You're getting into pure semantics, which I just can't make myself interested in. I'm sorry. You have some interesting philosophical ideas, which could be a thread in themselves, but I don't feel like trying to apply them to this discussion.

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In the US, the design of a font is not copyrightable. | Thank you for confirming this!

I think we once again are using different definitions, this time of "software." By technical definition, software is a program or set of programs and its (their) associated data. Are you using a "legalism" that allows files that are merely read and cannot execute any functions on their own "software"? If so, I don't know why you expect me to know that.

The uniqueness clause comes from the patent or trademark—"manufactured and sold only by the owner of the patent, formula, brand name, or trademark associated with the product"—and from the common connotation that Hudson was referencing when he used the word to mean unique. (Incidentally, I didn't see anyone jump down his throat about it...)

Dude, you can't expect to go onto a discussion board populated with professional typographers and expect a safe haven for flagrantly incorrect statements of fact and law. | All of my opinions, preconceptions and beliefs have been clearly labeled*, and I have been open and receptive of any and all corrections. But we've spent most of our time backing over the same posts and rephrasing ourselves and assuming things that needn't be assumed. Apparently people who scored above 15 in Reading Comprehension are in short supply.

* My comment that "Proprietary is both unique and can not be legally simulated by the competition," for example, was explicitly delineated as the way I understood the word at the time of the comments in question. It was worth stating, because how else will you be able to understand those posts?

Regarding my statement: I maintain that thinking of fonts as proprietary is at the very least ironic, and is not supported by the law... The last part of that was referring to this: In the US, the design of a font is not copyrightable. I can see now that it is a poor phrasing. I was referring to Hudson's usage again—that the characteristics of a font are what makes it proprietary. Either way, though, you can't supply a counter definition and act like I'm ignoring it in the same post (you're still contending that "proprietary software" means something different).

As for the first part, can we agree that the English alphabet is not proprietary?

The comment "It is apparently more akin to a hearing" was directed specifically at k.l., who was bitching that I hadn't written up my definition.

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Tristan — On the off chance that you are not aware of this fact: Matthew Butterick is both a published type designer and a practicing lawyer.

What do you say to the guy with two black eyes?

"Watch out. He's a pro boxer."

"Thanks for the tip, man." ;)

blank's picture

Are you using a "legalism" that allows files that are merely read and cannot execute any functions on their own "software"? If so, I don't know why you expect me to know that.

With all due respect, you, sir, are either a computer illiterate or a troll. Given the amount of effort you have put into this thread I shall assume the latter.

John Hudson's picture

Tristan: I was referring to Hudson's usage again—that the characteristics of a font are what makes it proprietary.

What I said, quite carefully, was this:

‘...what is proprietary to each typeface and what invites ownership or licensing of each typeface is those things that distinguish it from other typefaces.’

There's a play on words in here: those things that distinguish typefaces from each other -- what you have referred to as ‘characteristics’ -- are the properties of the typefaces that make them individually desirable and, hence, own their potential value. This seems to me self evident: if it were not the case, no one would want, let alone need, more than one typeface. The very fact that people do want more than one typeface means that they recognise independent value in different typefaces, and that value can only subsist in the ways in which those typefaces differ, i.e. in their individuating properties or, as you will, characteristics.

From this, it seems to me to follow that the value that subsists in the individuating properties of the typeface make it possible for someone to claim certain rights, rights of authorship, to that typeface, without in any way prejudicing the common rights to that which the typeface shares with other typefaces i.e. the alphabet.

John Hudson's picture

PS. I typically avoid the use of the term ‘proprietary’ when talking about type, except in the strict sense of a typeface that is commissioned by and reserved for the private use of an individual or institution, a usage typified by the essays in the book American Proprietary Typefaces, edited by David Pankow. The opening sentence of Pankow's introductory essay is not, however, without relevance to my comments here:

‘For a printer, a proprietary typeface is the ultimate mark of individuality, one that sets the products of his press apart from all others.’

Tristan Bowersox's picture

‘For a printer, a proprietary typeface is the ultimate mark of individuality, one that sets the products of his press apart from all others.’ | i.e. it is unique?

As to your restating of your use of proprietary, the only other interpretation I can glean from it is this: that the individuating properties (nice word choice) of a font do not make it proprietary directly, nor are they proprietary themselves, but they do justify making a font proprietary. Is that what you are saying?

As an aside, if you are trying to be understood, it is probably not the best time for wordplay. (Then again, it can be effective if utilized correctly)

butterick's picture

As a lawyer, my policy is not to discuss legal issues with nonlawyers, except for basic issues that are ordinarily known to practitioners in a given field. For instance, most professional type designers correctly understand the distinction in copyright law between font designs and font software. That's basic. Or the mechanics of a proprietary-software license. That's basic too.

That policy hasn't come about because I'm stingy or rude. It's come about because one inevitably runs into folks who are more interested in protecting their misinterpretations of the law, rather than educating themselves. (See, e.g., "Area Man Passionate Defender Of What He Imagines Constitution To Be".)

For instance, if you're someone who really thinks fonts aren't software, why should the burden be on me to persuade you otherwise? Or if you're someone who assumes that a lawyer experienced in intellectual-property law knows no more or less than anyone else about intellectual-property law — no lawyer is infallible, and some issues in the law are genuinely ambiguous, but come on. As a matter of probability, that's just wrong.

Typographers who carry around defective ideas about the law or the court system do themselves a disservice, because any intellectual-property business is deeply intertwined with the law. Typographers who spread defective ideas about the law do everyone else a disservice, like an ignorant teenager disseminating bad information about birth control.

Typophile, for its many virtues, ends up being a bad place to learn about the law of typography because of the large quantity of opinion, speculation, and occasionally crackpot invective held out as "the law." Some folks get it right, but I can tell the difference only because I know better.

For what it's worth, I find that lawyers are much more receptive to learning about typography than typographers are to learning about law. Which is the reverse of what I'd expect, since lawyers' livelihoods don't depend on typography.

Nick Shinn's picture

Which is the reverse of what I'd expect, since lawyers' livelihoods don't depend on typography.

Not so.
Printed (not scribed) law reports are the backbone of legal precedent.

However, you are right in that legal contracts are the glue that holds the type industry together, and in many ways influence what is possible in the appearance of types.

oldnick's picture

You're getting into pure semantics

Words have meanings, and it appears that you consistently use words whose meanings you misunderstand. Proprietary has nothing to do with uniqueness, but everything to do with ownership. There are very few things in creation which are truly unique, but a great many to which individuals, rightly or wrongly, claim ownership.

dberlow's picture

Until this thread, I always used the word 'exclusive' for fonts licensed to a single customer. Now it seems like a better idea than ever.

John Hudson's picture

...that the individuating properties (nice word choice) of a font do not make it proprietary directly, nor are they proprietary themselves, but they do justify making a font proprietary. Is that what you are saying?

Roughly. They form the basis of ownership by establishing a particular typeface as individually value-able. If something is individually value-able, there is something that may be owned, traded, licensed, etc. without impinging on the ownership, individual or collective, of other things whose own value is independent. Ownership itself is a matter of law (whether legislative, common, natural: there is no law without a philosophy of law, excepting arbitrary tyranny). I happen to think that natural law favours ownership of made things by the people who make them; indeed, I think it is the soundest basis of ownership that exists, much sounder than e.g. that used to justify private ownership of land.

[I've written 'value-able' rather than 'valuable' because the latter term is so common now as a synonym for 'worth a lot' that we tend to overlook its primary meaning of 'can have a value assigned to it'.]

John Hudson's picture

David, yes, exclusive is a useful term for a font licensed to a single customer. I make a distinction between exclusive licensing of rights and proprietary purchase of rights.

chank's picture

well, I might be a little late, but I gotta chime in on a couple subjects.

1. As far as charging an extra licensing fee for web use, I'm amazed at how affordable it usually is. I have my fonts available through a number of webfont distributors and I think they offer a great value to web designers who want to broaden their type selection with some more interesting fonts. If I were to make the prices for web fonts, I'd ask for a lot more. But because I trust my distributors, I just let them charge what they think is fair, per evolving industry standards. It doesn't cost much to implement web fonts in a website, and as per usual the ones you pay for are going to be better than the ones that are free.

2. Re: Ray's thing about not getting feedback from freefont users: I've had a different experience. I feel like I DO get good suggestions and feedback from the freefonts I put out there. It is often this feedback that helps guide me in making improvements to new fonts and building them up to the quality level that justifies charging for them as commercial fonts later.
Most recently I released a family of 16 freefonts called Panefresco (on Fontsquirrel: http://www.fontsquirrel.com/fonts/panefresco ;) and within days of release somebody wrote to tell me the left-double-smartquotes were broken in 6 of those weights. I was giddy that I was able to fix this (substantial) bug quickly after the font went out to just a few hundred people, instead of finding out about it later after it'd gone out to several thousand users.
Yes, most freefont users don't offer feedback, and just switch fonts instead. But there have been many occasions over the years where freefont customers have sent me bug reports and suggestions that have helped me make my fonts better.

3. Re: Pablo's success with donations: Even though I've probably given out millions of freefonts over the years, donations have NEVER been a significant revenue stream for me. Waiting for donations for freefonts will never get a type designer fairly paid for his hard work on a font. I agree that Pablo's success in donations is probably mainly because of his brilliant Lobster font micro-site page (so proud to have gotten mentioned on there!) Most type designers don't have the time, patience or writing skills to produce such an effective pitch page for each font they make. Consequently most font designers are not going to be as happy with the amount of donations they receive for a font.

4. Yeah, how about those Google Web Fonts? Seems like a really mediocre set of font offerings they've brought us to use on the web. Kinda like a half-assed freefont site, just converted to webfonts. And without the broad selection offered by most crappy freefont sites. I was happy to read Richard's article on the subject (http://readableweb.com/google-fonts-failing-for-internet-explorer-users/ ) to know I'm not the only one seeing this as a colossal font-fail from a great big corporation that's capable of doing so much better.

Richard Fink's picture

@chank

Thanks for chiming in. I found your comments about user feedback extremely useful. And yeah, what's up with Google fonts? Google Dafonts is more like it.

@butterick

"Or if you're someone who assumes that a lawyer experienced in intellectual-property law knows no more or less than anyone else about intellectual-property law — no lawyer is infallible, and some issues in the law are genuinely ambiguous, but come on. As a matter of probability, that's just wrong."

Kent implied that Tristan should give your opinion, in light of your being a member of the bar, more weight. And there's no rational reason he should, IMHO, that's all. (I am not looking to expand my remit and start picking on lawyers, too. Fear not!)

And you're certainly right about Typophile being a crappy place to learn about author's rights. But I think that's just a reflection of the times we're living in. Making practical judgments about what's copyrightable and not in the world of atoms is pretty straightforward. Thirty years ago, you knew where you stood. But today? Fuggedaboutit!

In one of the rare instances I agree with Antonin Scalia, I agree with him on this:

"As laws have become more numerous, and as people have become increasingly ready to punish their adversaries in the courts, we can less and less afford protracted uncertainty regarding what the law may mean. Predictability, or as Llewellyn put it, "reckonability," is a needful characteristic of any law worthy of the name. There are times when even a bad rule is better than no rule at all."

Today, intellectual property law - especially in regards to software - is mostly being made by judges on a case-by-case basis. Highly experienced IP lawyers are constantly, constantly surprised by court rulings. It's like the joke about particle physics: if you think you understand it, you don't understand it. There is no law worthy of the name. It's a crap shoot. And an expensive crap shoot, at that, where the wealthy hold a decided advantage.

No point debating the "probabilities" of what the average lawyer might or might not know about IP law.

For fun, here's today's font IP quiz:

What was the basis of The Font Bureau's complaint against NBC?

1) Breach of contract
2) Copyright infringement
3) Trademark infringement

Multiple answers are permitted. (For example, 1 AND 2)
This is NOT open book, you gotta answer without looking it up. (And, BTW, I've seen online articles that get this very wrong.)
Extra credit if you can name the two typfaces involved.

rich

kentlew's picture

Rich —

What I said was credence — i.e., “plausibility, likelihood, benefit of the doubt.” I thought I took pains not to imply that MB’s opinions had greater authority (which is how I take “weight”).

I just figure if someone is going to debate intellectual property law as it pertains to typeface design with a typeface designer who also practices intellectual property law, then he should a) be aware of the fact, and b) consider that said designer/lawyer probably has some idea of what he’s talking about. That’s all.

Then go ahead a debate the merits all you want.

Nick Shinn's picture

(1) Breach of contract.
IIRC, NBC paid for a basic licence, then used the font(s) company-wide, on more terminals than stipulated in the EULA.
That's something which a foundry would be likely to notice—first the sales report, "Hey, NBC bought our fonts", then seeing the fonts in a campaign and knowing that they would have been installed on more CPUs to make that happen.
And I remembered that, because it's a classic faux pas.
Sorry, can't recall the faces, don't watch NBC.

kentlew's picture

Antenna and Bureau Grotesque, IIRC.

Richard Fink's picture

Gee, I wish I had a free t-shirt to give out or something.
Kent, totally correct.
Nick, mostly correct - as is typical in cases like this, you throw as much sh-t up against the wall as you can, give the other side as much to answer for as you can, see what sticks, and look for a quick settlement. (As Martinez web site says - or used to say - is his usual strategy.)
Since the names of the fonts were trademarked, it would have been neglectful of Martinez NOT to throw in some claims about trademark infringement.
They were bogus, they would have been tossed out, but smart lawyering, nonetheless.

rich

Tristan Bowersox's picture

Sorry for the delay. I'll keep this one short.

I missed this post by Hudson (I think it was posted as I was writing one of mine):

--------

Tristan, as Karsten points out, it is everything you have written that I thought identified you as an amateur, not a specific statement. Re-reading, though, I note

I am an aspiring type designer

and later

There is no hope for a type designer to make a living solely on that trade

which makes me wonder if you are yet an amateur, or only aspiring to become an amateur, since apparently having type design as a profession is beyond hope (which in turn makes me wonder what it is that I have been doing for the past seventeen years).

Seriously, you don't know what you are talking about and are coming across as kinda foolish. You're talking to some type design professionals here, people who make a living doing this, and do know what they're talking about even though they often disagree. When David Berlow or Matthew Butterick say something -- even if I have trouble figuring out what David means a lot of the time and sometimes disagree -- I take it seriously because they have years of experience and a body of work to back it up. I'm sorry, Tristan, you don't have the basis of experience and knowledge to be making the kind of pronouncements you are spouting. Now, I won't hold this against you, because in 1994 I was young and inexperienced and shouted my mouth off on the comp.fonts newsgroup, but I reckon no one had grounds to take me seriously until about 1998, by when I'd actually done something. I look forward to the day when I can take you seriously.

--------

I should not have teased you for confusing your arguments with wordplay when I have been guilty of tongue-in-cheek comments that I should have known would be misinterpreted. I thought by labeling such things as "preconceptions," however, I would at least avoid people thinking they were "pronouncements." Of course people have made livings on type design. My hyperbole was based on comments in this forum, mostly. ("As to the original question, why don't you, rather than merely discuss, do what you propose and in two to five years tell us about your experiences? And to make it a real test, no support by parents, rich girlfriend, etc, are allowed." "I think the answer is clearly yes. Type designers struggle to survive, and very few earn enough for type design to be their sole source of income.") Those were both on this page. There were other influences too...some books I'd read maybe. I don't remember. That's why it was nothing more than a preconception. My preconceptions are wrong, you say? Well thanks for the tip. As a rational* person I already assumed that.

Let me say one thing about amateurism, professionalism, and credibility. In a discussion, you are only as credible as you present yourself. Just saying "you're wrong" "you're an amateur" doesn't win arguments—there is no winning. If you are right, present your arguments (courteously).

-

Okay, as to Butterick's legal issues post... What you are saying makes sense. I can see how you would come to such a policy. But. I am not arguing to win here. You'll have to just take my word on that. I didn't mean to sound like I was discrediting your definition by calling it a legalism, I really do want to know if that's the reason we're at a stalemate about it. | For instance, if you're someone who really thinks fonts aren't software, why should the burden be on me to persuade you otherwise? | Because we're in a discussion. I don't run things by you to check whether or not they're right (except for those legal questions), I expect you to provide a counterclaim. My definition of software came from experience, and was confirmed by Wikipedia's definition: "a collection of computer programs and related data that provide the instructions telling a computer what to do and how to do it." I even got dragged into playing 20 Questions with you, coming up with a possible theory about why your definition is different. Could you meet me 1/4 of the way? 1/8?

For someone with no time to argue for sport, you are sure dragging this out.

Tristan Bowersox's picture

You know what might be fun? I've often fantasized about doing this in a heated debate... What if we switched sides? I'll start arguing against my original thesis and Hudson, butterick, Nick, others, you start supporting my idea. It'll be good for all of us.

Richard, you can remain in the peanut gallery, critiquing both sides; you seem to be good at it. Most of the others are more involved in the side-arguments, so you can throw in on the opposite side of whichever one you would normally fight for. Or give up on this thread entirely, like most of you already have.

Stephen, we were actually having a decent conversation about amount of use being the ideal determining factor for pricing. If you'd like to continue that, I could retain my position for such purposes.

John Hudson's picture

Tristan: In a discussion, you are only as credible as you present yourself. Just saying "you're wrong" "you're an amateur" doesn't win arguments—there is no winning. If you are right, present your arguments (courteously).

I have presented my argument regarding typeface design and what I believe to be the moral proprietary rights of the creator of a thing insofar as that thing possesses unique value. I don't think I need rehearse those arguments again.

In a discussion, there sometimes comes a point when one is obliged to look outside the content of the discussion itself to make sense of the behaviour of the participants and to form judgements of their credibility. This is certainly true when one of the participants seems ignorant of a preceding decade or more of discussions on the same or related topics and is putting forth opinions on matters of law.

If credibility in discussion were based solely on how one presents oneself, then it would frequently be hard to credit David Berlow, on account of the obtuse way in which he chooses to express himself. We're obliged to credit him, though, on account of his long experience and expertise.

_____

As to your suggestion that we switch sides: what is this, the high school debating society? I have neither time for not interest in taking up ideas that I find incoherent and founded on a mistaken understanding of both the common and legal use of words? Nor do I see any need for such an exercise, if you are so clever and so uncommitted to be able to entertain yourself in debate.

Si_Daniels's picture

>As to your suggestion that we switch sides: what is this, the high school debating society?

No, it's just standard MO for internet trolling.

Frank ADEBIAYE's picture

Hi folks,
I'm an accountant and hobbyist type designer. I run an open source and copyleft type foundry VTF (www.vtf.fadebiaye.com) publishing my own typefaces (some are used in the real world) and starting to publish typefaces from professional type designers.
So I am not as established as most type designers, but I know economic rules and I've review most foundries EULA's (http://www.fadebiaye.com/type/guide_sat.pdf) and most type designers are very wrong.
Due to an increasing competition, they won't survive without a valid economic model. Copyright is not an economic model ; copyright is just begging for money in most cases.

Type designers should apply a payback ratio BEFORE making typefaces, over and over, like fools. Like cars makers, they make typefaces without looking at the market and then complain with copyright, apply stupid EULAs and so on.

But as there is too many competitors, I'm not sure that type designers is profitable as such ; with a payback model rather than copyright, you can have your time and your money, not sure that you'll earn billions of bucks.

Most type designers will have to diversify their business (e-books, ...) to survive. I'm perhaps a shit in type design, but I'm quite good and credible in economics (that's my job after all).

SebastianK's picture

For the economically uninitiated, like me, how does that work? What does such a payback model look like, and how does it bring food on the table?

Do you mean designers should work on commission only? Or only cater to the styles that seem to be in highest demand? In that case, many here will complain that you're stifling their creativity and deprive the world of unexpected, revolutionary type trends.

Frank ADEBIAYE's picture

More souscriptions than commissions, actually. Here is a PDF overview of the model:
http://www.fadebiaye.com/type/payback.pdf

Té Rowan's picture

Hmm... talking of type designers and e-books... has anyone thought of re-typesetting Project Gutenberg e-books as a way to showcase their faces in actual use?

Topic drift indeed...

SebastianK's picture

Yup, I usually use Gutenberg or Wikisource for test settings :)

Tristan Bowersox's picture

@Hudson: Some of your arguments have been made clearly (or made and then later made clear). Some of them have been knee-jerk reactions after misreading my posts. In recent posts, you seem to be preoccupied with what you have misperceived as claims, even though as I have said on multiple occasions that they were clearly delineated as preconceptions (you even included that in your quote). You continue to harp on it, but have not presented any argument for the issue being relevant.

Here's another example:

founded on a mistaken understanding of both the common and legal use of words | It was someone else who suggested we compare definitions, but unless I missed another post, I'm still the only one who has presented one. If you think the definitions are wrong, don't just say that—make a case for a different one.

Of course, the "proprietary" issue has little bearing on my argument anyway. It was just a word we were all reading differently that led to a lengthy derailment. I tried to initiate a philosophical discussion about what it is reasonable for a foundry to limit for a user, but it became mired in the status quo, with people discussing what foundries do limit or whether it is currently legal for them to do so.

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