What’s your type? Protecting typeface with copyright

by Koka Tarini Siddhartha 

In November 2017, I participated in a summer school on intellectual property (IP), organized by the World Intellectual Property Organisation (WIPO), and got involved in some interesting discussions. One of the lingering conversations began with an innocent question on IP protection for typefaces and fonts. One thing led to another, I got curious, and here we are to break things down.

Typeface and font—aren’t they the same thing?

It is common practice for people to use the words ‘typeface’ and ‘font’ interchangeably. As synonymous as these two words might seem, they indicate two separate elements, and this difference is particularly relevant in the legal context.

‘Typeface’ refers to the design or aesthetic aspect of a script. For example, Times New Roman, Helvetica, and Calibri are typefaces. On the other hand, fonts are derived from a typeface; in other words, a font is a formatted typeface. For example, the Helvetica typeface, in size 12 and bold, is a font.

Understood…but can typefaces and fonts be protected by IP laws?

Well, this is where the debate kicks off—there is a difference of opinion across countries. The United States grants copyright protection for fonts, design patents for typefaces, and trademark protection for the name of the typeface. The United Kingdom offers copyright protection for both typefaces and fonts.

However, there is no mention of typeface or font in the Indian Copyright Act, 1957. In a 2002 case (Aananda Expanded v. Unknown) decided by the Copyright Board, the sole question for consideration was whether a typeface could be copyrighted as an artistic work.

The board concluded that in the absence of any provision in the Copyright Act and International Copyright Conventions, traditional copyright law would not apply and thus typefaces and fonts could not be copyrighted. This decision is questionable, especially as typeface and font are used interchangeably throughout the judgment!

So, do you think typefaces and fonts can (and should) be protected?

One hundred percent, yes. To justify this answer, let’s take a look at the application of patent, trademark, design, and copyright laws to typefaces and fonts.

Patent: As previously detailed in our post here, the three basic requisites for an invention to be patented are novelty, the inventive step, and industrial application. A typeface and/or font are unlikely to be granted patents because they would barely meet the three qualifications for patentability.

Trademark: Trademarks are granted primarily in the form of a word mark or a device mark. The name of a typeface would be eligible for trademark protection. So, if one were to apply for trademark protection of their new, quirky typeface called, say, Tomatoface, they are likely to succeed.

Design: The ornamental, non-functional aspect of a product can be protected under the Design Act, 2000. At this point, you would automatically presume a typeface is protected by this law. However, there is one little condition that comes with design protection—if more than fifty copies of a product are produced, it cannot be protected by the Design Act.

So far, we have eliminated patent and design protection for typefaces and fonts, and only the name of a typeface can be protected with a trademark. How will copyright law apply?

Copyright: As already established, a typeface is the way a language is expressed, and is really an art form in itself. Without literally interpreting the Copyright Act and the evident absence of a provision protecting typefaces and fonts, a typeface could easily (and rightfully) be granted copyright protection as an artistic work. The merger doctrine would not apply here because it is as ridiculous as saying a dog can be artistically depicted in just one way.

A font could also get copyright protection, but under a different category. Let’s take a step back for just a minute—how does a font work? The user manipulates a typeface to get the desired font, which is made possible through software. So, when you come across people or companies licensing fonts, they are essentially licensing the font software.

Okay, you make a valid point, but the 2002 Copyright Board decision says otherwise.

True—but this might also be because no other case regarding the protection of typefaces and fonts has come before the courts as yet. Thus, it is possible that this decision will be overruled in the future.

While we continue to speculate, there are a few ingenious Indian companies like Ek Type and Indian Type Foundry that are solely and wholly involved in creating new typefaces and licensing font software depending on the number of users and kind of use. St+art India’s Hanif Kureshi also runs handpaintedtype.com to preserve and digitize the country’s street painters’ styles.

 

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