Fonts not copyrightable in US

tyleryoung's picture

i don't know if this article (circa 1996) has been threaded before or not. if it has, please forgive!

it's pretty good though, and thought i'd pass it on to those who might weigh in on its issues much better than i can.

www.faqs.org/faqs/fonts-faq/part2/

Thomas Phinney's picture

You got the conclusion wrong in your title. Today, virtually all fonts are issued in the form of outline font software which is indeed protected by copyright in the US. This is borne out by the reference you cite:

"However, scalable fonts are, in the opinion of the Copyright Office, computer programs, and as such are copyrightable"

"... the Copyright Office is persuaded that creating scalable typefonts
using already-digitized typeface represents a significant change in the
industry since our previous [September 29, 1988] Policy Decision. We
are also persuaded that computer programs designed for generating
typeface in conjunction with low resolution and other printing devices
may involve original computer instructions entitled protection under the
Copyright Act. For example, the creation of scalable font output
programs to produce harmonious fonts consisting of hundreds of
characters typically involves many decisions in drafting the
instructions that drive the printer. The expression of these decisions
is neither limited by the unprotectable shape of the letters nor
functionally mandated. This expression, assuming it meets the usual
standard of authorship, is thus registerable as a computer program." 57
FR 6202."

tyleryoung's picture

thomas,

it's pleasure to have your dialog.

admittedly, i'm no authority on the legal side of design, and i realize that laws change over time.

however, how does the contention that outline fonts = computuer software = protectable IP compare to this article (going back even further to 1988)?

www.ssifonts.com/myths2.HTM

have there been court rulings since that have reversed this thought process?

tyleryoung's picture

i realize that this the 1988 decision has in effect been reversed, but what i'm more curious about is what prompted them to change their mind?

was there a case, or was it lobbying of some sort?

typeblog's picture

It was through Adobe's lobbying efforts.

Thomas Phinney's picture

Not just Adobe, I believe - large sections of the type industry were involved in lobbying. An organization called TypeRight did much of the legwork, as I understand it.

And there was a case that upheld many key principles of intellectual property law for fonts: Adobe vs. SSI (1998). You can find the decision here: <http://directory.serifmagazine.com/ethics_and_law/copyright/judgement.php4>

A few key pieces:
"...the court finds that the Adobe font software programs are protectable original works of authorship."

"...the court finds that the typeface designs are statutory subject matter entitled to patent protection."

Cheers,

T

typeblog's picture

All concerned should be applauded.

hankzane's picture

Funny word,

wohnesorg's picture

The legal information given by Mr. Thomas Phinney is incorrect. This is understandable because Mr. Phinney is paid by Adobe for his task of promulgating erroneous legal information.

1) Adobe vs. SSI (1998)
This "decision" cannot be quoted, firstly because it is not a supreme court decision and secondly because it was a settlement. Mr. Phinney should publish the text of this "decision" if he thinks otherwise.

2) Copyright Office [September 29, 1988] Policy Decision

Mr. Thomas Phinney does not mention the decisive requirements, (1) firstly that a computer program is only protected by copyright if it is a creative work, (2) secondly if the author of this creative work is a human being that has written the source code of this computer program.

Note to (1) creative work
Most fonts are not creative work, but instead copies or clones or imitations of existing fonts. For instance, Adobe's Garamond is an imitation of the original Garamond and hence not creative work.

Note to (2) source code
The author of the font as computer program must have written the source code himself. The Copyright Office requires that the source code is submitted in the case of a litigation. But this requires that there exists a person (= a human being) that has written the source code of the program. However, it seems that there does not exist any font, the source code was written by a human being, because nobody except the programmers of Fontlab, Fontographer etc. are mentally able to do that.

Example: Neither Mr. Thomas Phinney nor Mr. Robert Slimbach nor any other person at Adobe wrote the source code of the font "Adobe Garamond" because none of these persons is mentally able to write the source code of a computer program that handles mathematical Bezier curves. And therefore there does not exist any source code written by Mr. Thomas Phinney or Mr. Slimbach and hence the "Adobe Garamond" is not protected by US copyright.

Wilhelm Ohnesorg, Germany

hrant's picture

1) Thomas is not a liar. When he is wrong it's because he believes it.
2) Random insults only make you look weaker. I hope you're mentally capable of realizing that, soon.

hhp

typeblog's picture

Wilhelm

It is not a requirement that the author of a creative work write the source code. That FontLab, Fontographer etc compile the characters into a usable format is irrelevant. It is the expression of the characters that is copyrightable.

TB

raph's picture

As someone who has sparred with Thomas on this issue before, I do not fine Wilhelm's arguments compelling. I am particularly skeptical of the assertions that (a) only Supreme Court decisions can stand as precedent and (b) that using a tool to mediate between the creative work and the "source code" used to represent a font invalidates any copyrightability.

Here's an interesting summary from Asian School of Cyber Law.

The law seems a bit gray to me; there is enough contradictory precedent, law, and policy to keep a fleet of lawyers comfortably employed for a while. However, in light of the Adobe vs. SSI settlement, no ethical person would release a copy or digitally derived clone of a font.

Thomas Phinney's picture

Wilhelm has obviously not actually read the material. I put up a link to the Adobe vs. SSI decision. There was a settlement in the case, but only after Judge Whyte made a SUMMARY JUDGMENT on many of the key issues in the case. Wilhelm and others should read that at the provided link, and familiarize themselves with what a summary judgment is.

I'm not a lawyer, I don't even play one on TV, and I'm not paid to provide legal information. I'm just reading stuff and providing some links and quotes.

Incidentally, the very first Type 1 fonts were in fact programmed in raw code form without a visual tool. I am myself quite capable of programming PostScript in this fashion, and even recently did so for a project, but I sure wouldn't bother doing a font that way.

Cheers,

T

hankzane's picture

Thomas, the link you provided is broken. (I'd like to read about the case.)

William Berkson's picture

Hmmm. Ohne sorge means 'without worry'. Ohnesorg looks like a pseudonym to me.

raph's picture

Thomas got the URL slightly wrong: this one works for me.

Other resources: press release from Emigre. A news report on the decision. A recent BoingBoing discussion thread, and our followup discussion.

Just now, I found a great criticism of Whyte's ruling from the Computer Law Review and Technology Journal. They say, "this ruling appears inconsistent with the current state of copyright law as it applies to fonts and typefaces." They also make clear that the decision is binding authority, at least in the Northern District of California. I'm not a lawyer any more than Thomas is (thank God!), but I can call bullshit on Wilhelm when I see it.

Thomas Phinney's picture

Hmmm. It seems that Typophile has helpfully decapitalized my link! Serif must be running on Unix, as it seems to be case-sensitive.

One more try: http://directory.serifmagazine.com/Ethics_and_Law/Copyright/judgement.php4

If that doesn't work, try capitalizing Ethics, Law and Copyright in the URl.

T

wohnesorg's picture

A SOURCE CODE EXAMPLE
(Postscript to my above message)

The following paragraph enclosed in brackets contains the source code of ONE glyph of a "font software program". Adobe claimed at court that the source code of this "font software program" was written by Mr. Robert Slimbach. However, Mr. Slimbach is mentally unable to explain to the court WHICH glyph is draw by this source code of "his" font software program, because he never wrote the source code of "his" font software program. Therefore Mr. Slimbach cannot be the author of "his" font software program and therefore "his" font software program cannot be protected by copyright.

(50 506 hsbw 0 49 vstem 101 40 vstem 269 40 vstem 357 49 vstem -124 42 hstem 635 41 hstem 135 -124 rmoveto 158 113 156 123 hvcurveto 0 88 -40 68 -83 77 rrcurveto -107 98 -35 39 0 50 rrcurveto 37 27 23 32 vhcurveto 21 0 30 -8 31 -21 rrcurveto 8 -6 6 -2 14 0 rrcurveto 19 14 18 14 hvcurveto 18 -21 28 -56 vhcurveto -143 -123 -143 -119 hvcurveto 0 -104 59 -68 71 -70 rrcurveto 55 -56 84 -77 0 -59 rrcurveto -40 -39 -22 -30 vhcurveto -24 0 -25 5 -36 30 rrcurveto -7 6 -6 3 -12 0 rrcurveto -22 -13 -18 -18 hvcurveto -29 33 -21 47 vhcurveto closepath 40 348 rmoveto -120 120 -6 70 0 44 rrcurveto 0 50 19 29 33 28 rrcurveto 0 -82 27 -43 107 -102 rrcurveto 78 -74 44 -62 0 -91 rrcurveto 0 -41 -8 -39 -40 -36 rrcurveto 0 81 -35 48 -99 100 rrcurveto closepath endchar)

In "Circular 61" (= "Copyright Registration of Computer Programs") of the United States Copyright Office, the person who claims to have written the source code of a "font software program" must deposit 50 pages of "his" source code and must prove that "he" as a human being has written the source code. Therefore it is not enough to declare at the Copyright Office that a non-human machine or a non-human dissembler program has automatically generated the source code by disassembling the font file previously created by a font editing program.

Nobody in the font industry is mentally able to write the source code of a "font software program" with the consequence that nobody is allowed to claim copyright to "font software programs". Of course, I too am not mentally able to write the source code of "font software programs". However, as opposed to Mr. Slimbach, I do not claim copyright to "font software programs". Therefore I need not be mentally able to write the source code of fonts.

The notice "Copyright by Adobe" included in a font can be ignored, unless Adobe proves that the source code of the "font software program" was written by a person who is mentally able to write the source code of "font software programs". If you show him the above example of the source code of a font by Adobe and he cannot say WHICH glyph is drawn by this source code, you know that he is taking the court judges for a ride.

ANOTHER EXAMPLE

Let's assume George Bush, who is unable to write PostScript programs, buys a PostScript printer and writes a letter with a word processor. If George Bush makes a printout of his letter, the PS printer driver (= this is a non-human entity!) automatically (!) generates a PS program and sends it to the printer. Is George Bush the "author" of this "software program" according to the Copyright Act? No, because George Bush is unable to write PS programs and therefore he cannot be the author of any PS programs.

The same is true with PS Type 1 fonts (and with OTF fonts containing PS Type 1 Bezier curves). And the same is also true if a person COULD write PostScript programs, but DOES NOT do so. The copyright act requires both, as far as fonts are concerned: A person who CAN write the source code of "font software programs" and who actually DOES it. It is not enough, if Adobe tells the Copyright Office that there COULD perhaps exist somewhere an author who perhaps COULD write the source code of a "font software program".

Those who are not familiar with copyright law may wonder why the copyright acts of all nations require HUMAN beings as "authors". This is because the "work" is defined as a "personal" (= human) creation in all copyright acts. Therefore mountains and lakes, flowers and trees, apes and monkeys, machines and computers and computer programs cannot be the authors of copyrighted works. The same is true of lawcourt judgements: They must be made by HUMAN judges. Apes and monkeys will not do. Nor will computer programs do that automatically generate the judgements.

Wilhelm Ohnesorg

Thomas Phinney's picture

You may not agree with Judge Whyte, but that does not remove the fact of his summary judgment that "Adobe font software programs are protectable original works of authorship."

> Nobody in the font industry is mentally able to write the source code of a "font software program"

This statement is an outright lie. I already said that I can. I personally know a number of people who work at Adobe and are capable of doing this. I am also sure that many other folks I know in the industry are capable of it. Jelle Bosma, Tom Rickner, Just and Erik all spring to mind....

T

Mark Simonson's picture

Photographers do not directly type out RGB values for each pixel when they take a photograph. Yet, this does not prevent photographs from being copyrighted. Would a photographer be unentitled to copyright protection if he were unable to recognize patch of data from a digital photo file?

Mr. Slimbach, by whatever means, caused those particular numbers and instructions to be recorded into a font file. If he had made different decisions, they would be different numbers and instructions.

William Berkson's picture

"No-Worry Willy": your Bush example supports Judge White's ruling. Bush's letter is copyright under US law the moment he writes it. What is copyright is the unique words of the letter, not the typewriter or word processor or pen or ink he uses. In the case of a font what is unique are the points and handles and metrics. That is what King was forbidden to copy in the case in question.

raph's picture

From the summary judgment:

"The code is determined directly from the selection of the points. Thus, any copying of the points is copying of literal expression, that is, in essence, copying of the computer code itself."

Similar reasoning applies, of course, to compiled code: just because the programmers at Adobe didn't handcode the x86 instructions themselves (they were compiled from C++ source code, which Adobe keeps secret) doesn't give you the right to peddle CS warez on streetcorners.

The inexorable conclusion is that "What, Me Worry?" Wilhelm is talking out of his ass. And I say this as someone who is not at all convinced that Whyte's opinion would hold up under rigorous scrutiny.

[For the record, above I misremembered my sparring partner the last time around - it was John Hudson, not Thomas. Sorry!]

typeblog's picture

Here is the ACTUAL portion of text from Circular 61 without Mr. Ohnesorg's additions

For published or unpublished computer programs, send one copy of identifying portions of the program (first 25 and last 25 pages of source code) reproduced in a form visually perceptible without the aid of a machine or device, either on paper or in microform, together with the page or equivalent unit containing the copyright notice, if any.

For a program less than 50 pages in length, send a visually perceptible copy of the entire source code. For a revised version of a program that has been previously published or previously registered or that is in the public domain, if the revisions occur throughout the entire program, send the page containing the copyright notice, if any, and the first 25 and last 25 pages of source code. If the revisions are not contained in the first 25 and last 25 pages, send any 50 pages representative of the revised material in the new program, together with the page or equivalent unit containing the copyright notice, if any, for the revised version.

hrant's picture

Guys, just so you know:
Huge Gaping Yawn.

hhp

typeblog's picture

And Mark, what about the digital animators that create the characters for The Incredibles and then have the computers compile the data for hours and hours.

And the phrase Copyright (Holder) means the owner has the right to copy it (and to make derivatives).

kltf's picture

Mr Simonson's example is very helpful to make clear a distinction which lies at the bottom of this threat:

> Photographers do not directly type out RGB values for
> each pixel when they take a photograph. Yet, this does
> not prevent photographs from being copyrighted. Would
> a photographer be unentitled to copyright protection if
> he were unable to recognize patch of data from a digital
> photo file?
>
> [Second paragraph omitted as taken for granted.]

In case of a photograph, you can protect the photograph, not just one form of representation (whether analog, i.e. as negative or as a print on whatever material, or digital, i.e. in whatever file format actually used).

In case of a typeface design, you may protect one form of representation, say as a PostScript program.
See the difference?

Nice that there is at least *some* kind of protection but not one that makes a type designer happy.

Karsten


Hello Mr Berkson! My family name means "whole" (more exactly: something missing or left out, like a whole in a fence) or, typographically speaking, "spatium" and definitely, it is not a pseudonym. ;-)

William Berkson's picture

Well, I just googled Ohnesorg, and it is a proper surname, so I might be wrong. Not about the copyright though!

Mark Simonson's picture

One other thing about the relationship between the PostScript code and what happens in a font design program:

It's not like a drawing program (say Illustrator) which completely hides the "code" from you. In a font design program, you are constantly aware of the coordinates of each point, how they relate to one another, distances between, angles, alignment and on and on--precisely the same numbers that end up in the font. It's not like you just draw a character and the computer does the rest. More like designing a very precise and efficient connect-the-dot, except with Bezier curves.

wohnesorg's picture

1)
As neither Mr. Phinney nor Mr. Slimbach nor anyone else could specify the character defined by this source code

50 506 hsbw 0 49 vstem 101 40 vstem 269 40 vstem 357 49 vstem -124 42 hstem 635 41 hstem 135 -124 rmoveto 158 113 156 123 hvcurveto 0 88 -40 68 -83 77 rrcurveto -107 98 -35 39 0 50 rrcurveto 37 27 23 32 vhcurveto 21 0 30 -8 31 -21 rrcurveto 8 -6 6 -2 14 0 rrcurveto 19 14 18 14 hvcurveto 18 -21 28 -56 vhcurveto -143 -123 -143 -119 hvcurveto 0 -104 59 -68 71 -70 rrcurveto 55 -56 84 -77 0 -59 rrcurveto -40 -39 -22 -30 vhcurveto -24 0 -25 5 -36 30 rrcurveto -7 6 -6 3 -12 0 rrcurveto -22 -13 -18 -18 hvcurveto -29 33 -21 47 vhcurveto closepath 40 348 rmoveto -120 120 -6 70 0 44 rrcurveto 0 50 19 29 33 28 rrcurveto 0 -82 27 -43 107 -102 rrcurveto 78 -74 44 -62 0 -91 rrcurveto 0 -41 -8 -39 -40 -36 rrcurveto 0 81 -35 48 -99 100 rrcurveto closepath endchar

it follows that nobody can read or write the source code of fonts. This means that fonts are not copyrightable due to the lack of persons who are able to write the source code of font software programs. Mr. Phinney contends that Mr. Thomas Rickner wrote the source code of fonts, but Mr. Phinney does not state the font or the fonts, the source code of which was written by Mr. Rickner so that it must be assumed that Mr. Phinney's statement cannot be substantiated.

2)
Mr. Phinney wrote

> Not just Adobe, I believe - large sections of the type industry were involved in lobbying.

This statement by Mr. Phinney seems to be correct. Adobe and other lobbyists are said to have surrendered substantial bribery moneys to officials at the US Copyright Office and to politicians and to court judges. Therefore Mr. Phinney quotation

"... the Copyright Office is persuaded that creating scalable typefonts..."

should be reworded as follows

"... the Copyright Office was bribed to declare that it is persuaded that..."


W.O.

typeblog's picture

Mr. Ohnesorg

As stated before it is not a requirement by the US copyright or in fact under German law for a type designer to write source code to obtain copyright.

Why does it matter to you whether fonts are copyrightable or not?

TB

Thomas Phinney's picture

1) The predicate and the conclusion are both false. The predicate contains a lie.

2) This also contains lies.

Plus, the point being made is irrelevant anyway.

I don't think I'll bother with this discussion, except to note that making libellous statements in public is pretty stupid. No, I'm not going to bother our lawyers - nobody is taking it seriously and they have better things to do.

T

William Berkson's picture

Tiffany, this got out of control with Mr. Ohnesorg's second sentence: "Mr. Phinney is paid by Adobe for his task of promulgating erroneous legal information."

This is a gratuitious insult, backed by nothing, and pointless to the discussion.

I argued early on when I came on Typophile - which I love! - that it would be better to post a warning about personal attacks not being welcome. Here is Typographica's:

"GUIDELINES
Please refrain from off-topic banter and personal attacks. Your comment may be edited or removed at the discretion of Typographica editors. Our goal is not to stifle debate but to keep it relevant."

Something like this might help to avoid something like what we have just seen, or to squelch it quickly.

This case is a 'pure' one because the offender is so scurrilous and wrong.

Such a note would still leave the forum open to Mr. Ohnesorg to make his (lame) argument about the need for knowing code. It would just make clear that the personal attacks are out of bounds.

hrant's picture

> This case is a 'pure' one

Bull.
Threatening with one's pack of rabid lawdogs is just as much of the problem.

And really, I don't want to get into a discussion of a useful definition of bribery, and how your system is rotten and corrupt to the core.

hhp

Miss Tiffany's picture

This thread is MOVING to the RELEASE area.

Miss Tiffany's picture

If this discussion spirals further out of control I will take action.

Miss Tiffany's picture

The problem for me, William, is that sometimes typophile regulars get out of control but then apologize and work through the discussion. If I took every urge I had to end some debates that happen here I would be seen as a heavy-handed moderator.

However, your point is a good one and we do need some guidelines easily viewable from the profile page or something.

That said, I don't like the tone in this thread. Thomas doesn't need someone like me to stand-up for him, but in this case I am going to end this thread now.

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