from the ATypI Newsletter No. 1, 1998
Font software programs are copyrightable under US law
Ian N. Feinberg
On February 2, 1998, United States District Court Judge Ronald M. Whyte issued an order holding that the glyph coordinates (outline points) and corresponding instructions in an Adobe font software program are copyrightable. The Court also held that Paul King’s algorithmic manipulation of the glyph coordinates in an Adobe font software program to create a “new” font software program, and the distribution by Southern Software and The Learning Company of that “new” font software program, infringed Adobe’s copyright.
The Court held that there is sufficient creativity in the selection of glyph coordinates to warrant copyrightability, despite the fact that some of the points are functionally dictated. The creativity comes from the “creative choices as to what points to select based on the image in front of [the Adobe font editors] on the computer screen. 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.” The court also held that: “The modifications made by King to the Adobe programs were simply uniform mechanical modifications such as scaling the fonts. Such trivial changes do not eliminate copyright infringement.”
Judge Whyte’s order is the first court ruling which holds that the points and instructions in a Type 1 font software program are copyrightable expression. It is consistent with the U.S. Copyright Office’s 1992 Final Policy Decision on the “Registrability of Computer Programs that Generate Typefaces.” Judge Whyte’s reasoning should apply equally to Type 1 font software programs authored by others, and should also apply to font software programs written in different formats (e.g., TrueType).
Judge Whyte also discussed U.S. patent law relating to Adobe’s six typeface design patents which Adobe alleged were infringed by defendants. The court held that “type fonts are patentable subject matter and the program which creates the type fonts is the article of manufacture.” Finally, Judge Whyte’s order does not affect the registrability or copyrightability of typefaces as such. The leading case of Eltra v. Ringer, which upheld the Copyright Office’s policy not to register copyrights on typefaces, was neither challenged by Adobe nor discussed by Judge Whyte.
Ian N. Feinberg is a Partner in the Intellectual Property Litigation Group of the law firm of Gray Cary Ware & Freidenrich. Mr. Feinberg was lead counsel for Adobe in Adobe v. Southern Software.