From the ATypI Newsletter No 1, 1998
Licensing type: a chain of creative relationships
Cynthia Hollandsworth
The designer doesn't own it and neither do you � it's called intellectual property
Can you own a typeface? It's an interesting question in this day of digital typefaces. Even the creator of a typeface design cannot own his own design in most countries in the world, because there are no design protection laws. And in nearly every case of digital type that you buy, you definitely don't own it. So how do we have commercial relationships with each other under such circumstances, and get typeface designs to the market? By using contractual agreements and licenses.
The designer doesn't own it . . .
First, consider the problem of the typeface designer. With a handful of exceptions in the world, typeface design is not recognized as a copyrightable work. Most countries have decided that typefaces are works of industrial design, which may be patentable, but cannot enjoy the broad protections automatically granted nearly worldwide for works of art. There is no central registry where a type designer can claim authorship, and defend his claim to their creation.
There are, however, other ways to assert ownership. In typefaces this occurs through three avenues: trademark of the name, a licensing agreement, and by copyright of the font software. Trademarks are names � the commercial trade names of items offered for sale. A trademark name can be protected virtually forever in most countries, so long as it continues in commercial use, and is defended by its owner. A typeface designer can give a unique name to her typeface design, and the name can be protected nearly as easily as an artwork can be copyrighted. Trademarks are properties that can be licensed to customers with a contract.
Graphic designers can appreciate this concept with regard to typefaces. If you've specified Helvetica, or ITC Galliard, you know what you want, and you'll accept no substitutes. So you can see that the design is integrally associated with the name, a relationship that is acknowledged in the laws of virtually every country.
The third area, font software, is generally recognized worldwide as well. If you digitize a typeface design, you have created a software program. Software programs meet the standard for copyrightability, even if the resulting product of the software program is considered not copyrightable. Though it seems slightly absurd, this position was recently upheld in the US court system in regard to the weakest link in the font software � the outline of the letter design itself. Therefore, even the bezier-curve outline that a designer creates to represent the typeface design is copyrightable, regardless that the design itself is not.
These rights are not an ultimate protection against the unauthorized use of the design. Because the design is not protected, there is nothing to stop the re-digitizing of a design by someone who did not create it. And ironically, the same law that protects the software created by the designer will also protect the software created by the copyist.
The distributor doesn't own it . . .
The typeface designer therefore can license the relationship between their unique typeface name, their trademark, and the design that is associated with that name. Manufacturers and distributors of type sign licensing agreements with the designer for the right to resell that trademark in association with the design it represents.
If the designer has digitized their typeface, they will also usually license the right to reproduce the typeface software for commercial sale. The license will allow the distributor to use an authorized master copy for the purpose of duplication to offer customers the identical product. It's a simple manufacturing process, and these days sometimes doesn't even involve a disk, but rather is delivered over the Internet.
Most licensing agreements between designers and distributors are based on a set of agreed-upon elements. There is a period of time during which the license is active, a payment per unit or per total value sold of the typeface design, and in some cases, a minimum payment due for each unit of the typeface product sold. Other variables include limits on which technologies the typeface can be translated to, whether the distributor can add weights or characters to the typeface design, how it will be marketed, rights to sublicense the design to other manufacturers or distributors, and regional limitations on sales and marketing.
There are business cases for variations on all of these elements. For example, a designer lucky enough to have a design selected for inclusion in an operating system, software product, or hardware device, will be asked to concede a lot of control. A license will be perpetual, without end. It may be for all subsequent technologies, and permit the distributor to make the technological variants without the designer being able to have an approval of the translated design. The financial arrangements can differ substantially, ranging from no minimum payment per unit sold to a flat, annual license fee that may be higher in early years and diminish to nothing in later years, to a flat price for a paid-up perpetual license.
Designers faced with these opportunities need to evaluate the structure of their agreements carefully. Sometimes there is more money to be made by cooperating with less restrictive licenses, and the designs can be far more widely exposed as a result. But some designers decide that they would prefer to distribute their typefaces themselves, and appear to be doing fairly well at it, especially now that the Web offers the chance to promote to literally the entire world with very little investment.
. . . And you don't own it.
So you've purchased the latest typeface design, and installed it on your computer. It feels like it's your font � but it's not. That notorious sealed envelope, the end-user license agreement, continues the chain of licenses that brought the design to you. Many people believe the end-user license is a toothless anachronism, however it represents an important tool in the commercial process. If you read it, you'll find that it allows you to do certain things with the software product, and specifically disallows you to do others. For example, you can produce anything graphical that you want with the typeface, and all rights in your creation belong to you. However, you are not permitted to copy the software and distribute it further, either commercially for sale or as gifts for your friends.
The license granted to the distributor by the creator allows these sublicensing rights to the end user as a means to commercialization. But the ability to distribute profitably would clearly be compromised if the sublicense allowed the end-user to continue in the distribution chain. Therefore the license forbids this activity. And it appears that as legal cases begin to be tried in this area, the law is supporting the rights of the software owners.
Cries of "Font Police" have been heard from time to time in the last few years, and it is hard to imagine that there would be raids on individuals in pursuit of unlicensed typeface products. However, people using unlicensed products do face risk, and should attempt to correct their license status with regard to typeface products, just as they do for other software products.
It's called intellectual property.
If you have a painting, it can be physically located and "owned" in the conventional sense. Name trademarks and font software copyrights cover relatively intangible things that are known as intellectual property. Because it is not real property, intellectual properties have different criteria for commercial rights than material creations that exist in only one place at a time. The way intellectual properties are commercialized, therefore, is through contractual agreements and licenses. It's important as a creative and law-abiding person to understand the importance of these legal relationships, and to respect them. Most creative people will need these protections in their careers. They support the creative industry, and guarantee that innovation will continue in the design and distribution of new typeface design products.
For more information on font licensing, contact the ATypI secretariat
When she wrote this in 1998, Cynthia Hollandsworth was a member of the Board of ATypI, and worked for the Agfa Division of Bayer Inc. in the United States. She is a typeface designer and has worked for typeface protection in the US for more than 10 years.