Path: utzoo!mnetor!uunet!husc6!cmcl2!brl-adm!umd5!ames!amdahl!kim
From: kim@amdahl.amdahl.com (Kim DeVaughn)
Newsgroups: comp.sys.amiga
Subject: Re: Macintosh Fonts
Message-ID: <19722@amdahl.amdahl.com>
Date: 16 Dec 87 23:40:48 GMT
References: <546@oscvax.UUCP> <1308@uhccux.UUCP>
Organization: Amdahl Corporation,  Sunnyvale, CA 94086
Lines: 469


[ "Send lawyers, guns, and money ..." ]

OK ... I've already several requests for the information on font
protection that I mentioned I had, so here it is.  I lost the
copy I made when it was originally posted by Pat Wood, but Richard
Sexton kindly sent me a copy a few months (thanks, Richard).

Further discussion should probably take place in comp.text, misc.legal,
or that new whatever.postscript newsgroup.

Please note that I am not advocating the copying or reproduction of
fonts ... just passing on some information as to the legality of doing
so.

/kim


vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv

 To: amdahl!kim
 Subject: Hello, yourself
 Date: Sat Sep 19 16:24:17 1987
 From: ames!ut-sally!cadovax!gryphon.CTS.COM!richard
    

 Heres Chucks article. I dont think its a 'loophole' as I believe a loophohole
 is unintentional, and the lack of copyright for font designs seems to
 be quite intentional. (As Chuck points out, at least until the Japanese
 start doing it :-) 

 ------------------------------------------

 Summary: Bigelow's article
 From: patwood@unirot.UUCP (Patrick Wood)
 Path: ihnp4!ptsfa!lll-lcc!styx!ames!rutgers!unirot!patwood
 Organization: Public Access Unix, Piscataway, NJ
 Newsgroups: comp.text,misc.legal
 Date: 25 Mar 87 04:02:16 GMT



 What the hell, let's do it now...

 The following is an article published in an upcoming issue of the
 PostScript Language Journal.  Since a similar version of this was
 posted by Charles about a year ago to the net, I don't think I'm
 doing my readers a disservice in distributing it here prior to the
 mailing of the Journal.  I think this article covers the issues better
 than anything I've seen on the subject of typeface protection.

 Pat Wood
 Editor, The PostScript Language Journal

 -------------------------cut here and nroff/troff------------------------
 COMMENTARY
 Typeface Protection
 By Charles Bigelow

 Preamble

 The main question of typeface protection is:  `Is there anything there
 worth protecting?'  To that the answer must certainly be:  `Yes.
 Typeface designs are a form of artistic and intellectual property.'
 To understand this better, it is helpful to look at who designs type,
 and what the task requires.

 "Who Makes Type Designs?"

 Like other artistic forms, type is created by skilled artisans.  They may
 be called type designers, lettering artists, punch-cutters, calligraphers,
 or related terms, depending on the milieu in which the designer works and
 the technology used for making the designs or for producing the type.

 `Type designer' and `lettering artist' are self-explanatory terms.
 `Punch-cutter' refers to the traditional craft of cutting the master image
 of a typographic letter at the actual size on a blank of steel that is
 then used to make the matrix from which metal type is cast.  Punch-cutting
 is an obsolete though not quite extinct craft.  Seeking a link to the tradition,
 modern makers of digital type sometimes use the anachronistic term
 `digital punch-cutter'. `Calligrapher' means literally
 `one who makes beautiful marks'.
 The particular marks are usually hand-written
 letters, though calligraphers may design type, and type designers may do
 calligraphy.

 It usually takes about seven years of study and practice to become a
 competent type designer.  This seems to be true whether one has a Phd. in
 computer science, an art-school diploma, or no academic degree.  The skill
 is acquired through study of the visual forms and practice in making them.
 As with geometry, there is no royal road.

 The designing of a typeface can require several months to several years.
 A family of typefaces of four different styles, say roman, italic,
 bold roman, and bold italic, is a major investment of time and effort.
 Most type designers work as individuals.  A few work in partnership (Times
 Roman, Helvetica, and Lucida were all, in different ways, the
 result of design collaboration.)  In Japan, the large character sets
 required for a typeface containing Kanji, Katakana, and Hirakana 
 induce designers to work in teams of several people.

 Although comparisons with other media can only be approximate, a typeface
 family is an accomplishment on the order of a novel, a feature film
 screenplay, a computer language design and implementation, a major 
 musical composition, a
 monumental sculpture, or other artistic or technical endeavors that
 consume a year or more of intensive creative effort.  These other creative
 activities can be protected by copyright or other forms of intellectual
 property protection.  It is reasonable to protect typefaces in the same
 way.

 "The Problem of Plagiarism"

 A lack of protection for typeface designs leads to plagiarism, piracy, and 
 related deplorable
 activities.  They are deplorable because they harm a broad range of
 people beyond the original designers of the type.  First, most type
 plagiarisms are badly done.  The plagiarists do not understand the nature
 of the designs they are imitating, are unwiling to spend the necessary
 time and effort to do good work, and consequently botch the job.  They then
 try to fob off their junk on unsuspecting users (authors, editors, and
 readers).  Without copyright, the original designer cannot require the
 reproducer of a type to do a good job of reproduction.  Hence, type quality
 is degraded by unauthorized copying.

 Secondly, without protection, designs may be freely imitated; the
 plagiarist robs the original designer of financial compensation for the
 work.  This discourages creative designers from entering and working in the
 field.  As the needs of typography change (on-line documents and laser printing 
 are examples of technical and conceptual changes) new kinds of 
 typefaces are required.  Creative design in response to such needs
 cannot flourish without some kind of encouragement for the creators.  In a
 capitalist society, the common method is property rights and profit. 
 In a socialist
 (or, in the past, royalist) society, the state itself might employ type
 artists.  France, as a monarchy and as a republic has had occasional state 
 sponsorship of typeface design over the past 400 years.  The Soviet Union
 has sponsored the design of new typefaces, not only in the Cyrillic alphabet,
 but also in the other exotic scripts used by various national groups in the
 Soviet Union.

 Those who would justify plagiarism often claim that the type
 artists do not usually receive a fair share of royalties anyway, since
 they have usually sold their designs to some large, exploitive corporation.
 It is true that type designers, like many artists,
 are often exploited by their `publishers', but plagiarism exacerbates the
 problem.  Plagiarism deprives the designer of decent revenues because it diverts
 profits to those who merely copied the designs.  Plagiarism gives the manufacturer
 yet another excuse to reduce the basic royalty or other fee paid for 
 typeface designs; the theme song is that the market determines
 the value of the design and cheap rip-offs debase the market value of a face. 
 For those interested in the economic effects of piracy, it is clear that
 plagiarism of type designs ultimately hurts individual artists far more than 
 it hurts impersonal corporations.

 "Kinds of Protection for Type"
 There are five main forms of protection for typefaces:

    1. Trademark
    2. Copyright
    3. Patent
    4. Trade Secret
    5. Ethics

 Trademark.  A trademark protects the name
 of a typeface.  In the U.S., most
 trademarks are registered with the U.S. Patent and Trademark Office.  The
 R in a circle  after a trademark or tradename indicates U.S.
 registration.  The similarly placed TM indicates that a trademark is
 claimed, even if not yet officially registered.  However, a trademark may
 be achieved through use and practice, even without registration.  Owners of
 trademarks maintain ownership by use of the trademark and by litigation to
 prevent infringement or unauthorized use of the trademark by others.

 As a few examples of registered typeface trademarks, there are Times Roman
 (U.S. registration 417,439, October 30, 1945 to Eltra Corporation, now
 part of Allied); Helvetica (U.S. Registration 825,989, March 21, 1967, also to
 Eltra-Allied), and Lucida (U.S. reg. 1,314,574 to Bigelow & Holmes).  Most
 countries offer trademark registration and protection, and it is common
 for a typeface name to be registered in many countries.  In some cases the
 registrant may be different than the originator.  For example, The Times New
 Roman (Times Roman) was originally produced by the English Monotype
 Corporation.  In England and Europe, most typographers consider the design
 to belong to Monotype but the trademark was 
 registered by Linotype (Eltra-Allied) in the U.S., as noted above.

 Trademark protection does not protect the design, only the name.
 Therefore, a plagiarism of a design is usually christened with a pseudonym
 that in some way resembles or suggests the original trademark, without
 actually infringing on it.  Resemblance without infringement can be a fine
 distinction.

 Some pseudonyms for Times Roman are:  `English Times', `London',
 `Press Roman', `Tms Rmn'.
 Some for Helvetica are `Helios', `Geneva', `Megaron',
 `Triumvirate'.  So far, there seem to be none for Lucida.  There are
 generic typeface classifications used by typographers and type historians
 to discuss styles, trends, and categories of design.  Occasionally these
 apparently innocuous classification systems are employed by plagiarists
 to devise generic pseudonyms, such as `Swiss 721' for Helvetica, and
 `Dutch 801' for Times Roman.  It is not certain whether this usage of a
 generic classification is more for clarification or for obfuscation.  In
 general, the proper tradename is a better indicator of identity, quality,
 and provenience in typefaces than a generic name.  Some people believe that
 the same is true for other commodities such as wine, where taste is important.

 A trademark usually consists of both a proprietary and a generic part.
 For example, in the name `Lucida Bold Italic', `Lucida' is the proprietary
 trademark part and `Bold Italic' is the generic part.  The generic word
 `type' is usually understood to be a part of the name,
 e.g. `Lucida Bold Italic type'.
 Sometimes a firm will append its name or a trademarked
 abbreviation of it to the typeface name, to achieve a greater degree of
 proprietary content, e.g. `B&H Lucida Bold Italic'.

 A related matter is the use of the name of a type's designer.  A firm that
 (ethically licenses a typeface will often cite the name of the designer
 e.g. Stanley Morison (with Victor Lardent) for Times Roman, Max Miedinger
 (with Edouard Hoffmann) for Helvetica, Charles Bigelow and Kris Holmes for
 Lucida.  Although a person's name is not usually a registered trademark,
 there are common law restrictions on its use.  The marketing of
 plagiarized type designs generally omits the names of the designers.

 Although Trademark is an incomplete kind of protection, it is used
 effectively (within its limitations) to prevent the theft of type names.
 Certain traditional typeface names, usually the surnames of illustrious
 designers like Garamond, Caslon, Baskerville,
 Bodoni, and others have become generic names in the public domain.
 Trademark protection of such names requires the addition of some
 proprietary word(s), as with these hypothetical creations,
 `Acme New Garamond', or `Typoluxe Meta-Baskerville'.

 Copyright.  Copyright of typefaces can be divided into two parts:
 copyright of the design itself; and copyright of the font in which the
 design is implemented.  In the U.S., typeface designs are currently not
 covered by copyright.  This is a result of reluctance by the copyright
 office to deal with a complex field; by lobbying against copyright by
 certain manufacturers whose profits were based on typeface
 plagiarism; and by a reluctance of congress to deal with the complex issue in
 the recent revision of the copyright law.

 The reluctance of Americans to press for typeface copyright may have been
 influenced by a feeling that typeface plagiarism was good for U.S.
 high-tech businesses who were inventing new technologies for printing, and
 plagiarizing types of foreign origin (Europe and England).  If the situation
 becomes reversed, and foreign competition (from Japan, Taiwan, and Korea) 
 threatens to overcome American technological superiority in the laser printer 
 industry, then American firms may do an about-face and seek the protection of
 typeface copyright to help protect the domestic printer industry.  Such a
 trend may already be seen in the licensing of typeface trademarks by
 Adobe, Hewlett Packard, IBM, Imagen, and Xerox in the U.S. laser printer 
 industry.

 In Germany, where typeface design has always been a significant part of
 the cultural heritage, and where typefounding has remained an important
 business, there are more than one kind of copyright-like protections for
 typefaces.  Certain long-standing industrial design protection laws have
 been used to protect typeface designs in litigation over royalties and
 plagiarisms.  Further, there is a recent law,  the so-called 
 `Schriftzeichengesetz' enacted in 1981, that
 specifically protects typeface designs.  New designs are registered, as
 is done with copyright in most countries.  This law only protects new,
 original designs.  It is available to non-German designers and firms.
 Therefore, some type firms and designers routinely copyright new designs
 in West Germany.  This gives a degree of protection for products marketed
 in Germany.  Since multinational corporations may find it cheaper to
 license a design for world-wide use rather than deal with a special case
 in one country, the German law does encourage licensing on a broader scale
 than would initially seem to be the case.

 France, like Germany, has ratified an international treaty for protection
 of typefaces.  This 1973 Vienna treaty will become international law when
 four nations ratify it.  So far, only France and West Germany have done so,
 and thus a design must be protected separately in each country.  Even when
 the treaty becomes law, it will take effect only in those countries that
 have ratified it.  The treaty was principally the work of the late Charles
 Peignot, a French typefounder, and John Dreyfus, an English typographer
 and typographic scholar.  Presently, typefaces may be registered for
 protection in France under a 19th century industrial design protection law.

 In the U.S., there continues to be some movement for typeface design
 protection.  A proposed bill that would protect the designs of useful
 articles, like type, has been in committee for several years.  It seems 
 to be going nowhere. 

 Digital (as opposed to analog) fonts may be protected by
 copyright of digital data and of computer programs.  It has been
 established that computer software is copyrightable.  Therefore, software
 that embodies a typeface, e.g. a digital font, is presumably also
 protected.  There is some objection to this kind of copyright, on the
 grounds that the ultimate output of the program or the result of the data
 (i.e. a typeface design) is not copyrightable.  However, the current belief
 expressed by the National Commission on New Technological Use of
 Copyrighted Works is that software is copyrightable even if its function
 is to produce ultimately a non-copyrightable work.  Hence, typefaces produced
 by Metafont or PostScript, two computer languages which represent fonts
 as programs, are presumably copyrightable.  Typefaces represented as bit-map
 data, run-length codes, spline outlines, and other digital data formats, 
 may also be copyrightable.  Some firms do copyright  
 digital fonts as digital data. 

 Note that the designs themselves are still not protected in the U.S.  A
 plagiarist could print out large sized letters (say, one per page) on an
 Apple LaserWriter, using a copyrighted PostScript digital font, and then
 redigitize those letters by using a scanner or a font digitizing program
 and thus produce a new digital font without having copied the program or
 digital data, and thus without infringing the copyright on the font.  The
 quality of the imitation font would probably be awful, but it wouldn't
 violate copyright.  Of course, the plagiarist would need to rename
 the font to evade trademark infringement.  (As I write these
 words, I have the guilty feeling that I have just provided a recipe for
 type rip-off, but others have obviously thought of just such a scheme
 (John Dvorak has even proposed something like it in one of his columns.)

 Design Patent.  The designs of typefaces may be patented in the U.S. under
 existing design patent law.  Many designs are patented, but type designers
 generally don't like the patent process because it is slow, expensive, and
 uncertain.  Nevertheless, some type do get patented, and it is a form of
 potential protection.  Note that this is Design Patent (the typeface
 doesn't have to be a gizmo that does something, it merely has to be unlike
 any previous typeface.  The drawback here is that most attorneys and judges
 are not aware that there are more than two or three typefaces:  say,
 handwriting, printing, and maybe blackletter.  Therefore, litigating
 against infringement is an educational as well as a legal process. 
 It is easy to see that typeface theft is more subtle than knocking over 
 a liquor store; it may not be illegal and the returns may be greater.

 Protections like design patent are available in many other countries, but
 there is not an international standard (to my knowledge) so the situation
 must be examined on a country by country basis.

 Invention Patent.  Methods of rendering typefaces can be patented as
 mechanical or electronic inventions.  For example, the old hot-metal 
 Linotype machinery was protected by various patents, as was the IBM Selectric 
 typewriter and type ball.  IBM
 neglected to trademark the typeface names like Courier and Prestige, so
 once the patents had elapsed, the names gradually fell into the public
 domain without IBM doing anything about it (at the time, and for a dozen 
 years or so, IBM was distracted by a major 
 U.S. anti-trust suit).  Most students of the type protection field believe
 that those names are probably unprotectable by now, though IBM could still
 presumably make a try for it if sufficiently motivated.

 There is currently a noteworthy development regarding a patent for
 outline representation of digital type as arcs and vectors, with special
 hardware for decoding into rasters.  This patent (U.S. 4,029,947, June 14,
 1977; reissue 30,679, July 14, 1981) is usually called the Evans & Caswell
 patent, after its inventors.  It was originally assigned to Rockwell, and
 in 1982, Rockwell sued Allied Linotype for infringement.  Allied settled
 out of court, having paid an amount rumored to be in the millions.
 Rockwell sold the patent, along with other typographic technology, to
 Information Internation, Inc. (III) which then sued Compugraphic for
 infringement.  According to the Seybold Report, a respected typographic industry
 journal, Compugraphic recently settled out of court for $5 million.
 Although many experts believe the patent to be invalid because of several
 prior inventions similar in concept, it nevertheless seems to be
 a money-maker in corporate litigation.  The Seybold Report has speculated on
 which firms III would litigate against next.  Among the candidates suggested by the
 Seybolds was Apple for its LaserWriter, which uses outline fonts.  Since
 the entire laser printer industry and the typesetting industry is moving
 toward outline font representation, Apple is certainly not alone.  The
 Seybolds further speculate on whether the difference between
 character-by-character CRT typesetting and raster-scan laser typesetting
 and printing would be legally significant in such as case.  Ultimately,
 some firm will hold out for a court judgement, and the matter will be decided.

 Trade Secret.  Given that typeface designs have relatively little copyright
 protection in the U.S., they are often handled as trade secrets.  The
 secret must apply to the digital data or programs only, because the images
 themselves are ultimately revealed to the public as printed forms.  It is
 much more difficult to reconstruct the formula of Coca-Cola from its taste
 than it is to reconstruct the design of Helvetica from its look on the
 page.  The exact bitmap or spline outline of a digital font is usually not
 reconstructable from the printed image, although CRT screen fonts at usual
 resolutions (60 - 120 dots per inch) may be reconstructed by patient
 counting and mapping of bits off a screen display.  Typeface
 licenses often contain stipulations that the digital data will be encrypted and 
 confidential. 
 Just as a firm will protect the secret of a soft drink recipe, so a type
 firm will protect the exact nature of its digital data.

 Ethics.  Some typographers are motivated by higher principles than greed,
 profit, expediency, and personal interest.  Idealists enthused with
 concepts of ethical behavior and a vision of typography as a noble art may
 find it distasteful to use plagiarized types.  Some graphic
 designers insist on using typefaces with bona-fide trademarks, both to
 ensure that the type will be of high quality, and to encourage creativity
 and ethics in the profession.  A consequence of plagiarism that is
 sometimes overlooked is a general erosion of ethics in an industry.  If it
 is okay to steal typeface designs, then it may be okay to purloin other kinds
 of data, to falsify one's resume, to misrepresent a product, and so forth. 
 Most professional design
 organizations attempt to promote ethical standards of professional
 behavior, and personal standards may extend to avoidance of plagiarisms.

 The Association Typographique Internationale (ATypI) is an international
 organization of type designers, type manufacturers, and letterform
 educators.  Its purpose is to promote ethical behavior in the industry,
 advancement of typographic education, communication among designers, and
 other lofty aims.  Members of ATypI agree to abide by a moral code that
 restricts plagiarism and other forms of depraved behavior (pertaining to
 typography).  These are noble goals, but some members (especially
 corporate members) of ATypI, confronted with the pressures and
 opportunities of commercial reality, nevertheless plagiarize typefaces of
 fellow members, the moral code notwithstanding.  Since ATypI is a voluntary
 organization, there is very little that can be done about most such
 plagiarism.  Some years back, a world-famous type designer resigned
 from the ATypI Board of Directors in protest over the organization's
 flaccid attitude toward the plagiarists among its ranks.  He has since agreed
 to sit on the board again, but criticism of the organization's inability
 to prevent type rip-offs by its own members, not to mention by
 non-members, continues to be heard.  Moderates in ATypI believe that a
 few morals are better than none.  It is not clear whether their
 philosophical stance derives from Plato, Hobbes, or Rousseau.

 Given the general attitude of the public toward copyrighted video and software,
 it is doubtful that ethical considerations will hinder most end-users'
 attitude to plagiarized type fonts.  A desire to have the fashionable
 `label' or trademark may be a greater motivation toward the use of
 bona-fide fonts than an ethical consideration.

 "Further Reading"
 `The State of the Art in Typeface Design Protection', Edward Gottschall,
 Visible LanguageP, Vol. XIX, No. 1, 1985.  (A special issue on
 `The Computer and the Hand in Type Design' (proceedings of
 a conference held at Stanford University in August, 1983).

 IDer Schutz Typographischer Schriftzeichen, by Guenter Kelbel.
 Carl Heymans Verlag KG, Cologne, 1984.  (A learned account in juridical
 German prose, of the significance of the Vienna Treaty of 1973 and the
 West German Schriftzeichengesetz of 1981).

 Disclaimer:
 These notes were originally prepared at the request of Brian Reid for
 informal distribution.  They are based on the author's review of available 
 literature on
 the subject of typeface protection, and on personal experience in
 registering types for trademark, copyright, and patent.  However, they are
 not legal advice.  If one is contemplating protecting or plagiarizing a
 typeface, and seeks legal opinion, it is advisable to consult an attorney. 
 The term `plagiarize' and words derived from it
 are used here in its dictionary
 sense of `to take and use as one's own the ideas of another' and does not
 mean that the practice of typeface plagiarism is illegal;
 that is determined by the laws of a particular country.

 ---------------------------------------------------------------
 Charles Bigelow is a professor of digital typography at Stanford
 University and a
 professional designer of original digital typefaces for electronic
 printers and computer workstations.  Mr. Bigelow and his partner
 Kris Holmes designed the Lucida typeface family which is now
 widely used on various laser printers.
 --------------------------------------------------------------

 Chuck B. is the font hippie I met at SIGGRAPH -- Richard J. Sexton

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^


[  Any thoughts or opinions which may or may not have been expressed  ]
[  herein are my own.  They are not necessarily those of my employer. ]

-- 
UUCP:  kim@amdahl.amdahl.com
  or:  {sun,decwrl,hplabs,pyramid,ihnp4,uunet,oliveb,cbosgd,ames}!amdahl!kim
DDD:   408-746-8462
USPS:  Amdahl Corp.  M/S 249,  1250 E. Arques Av,  Sunnyvale, CA 94086
CIS:   76535,25