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Re: Preparation of Debian GNU/Linux 3.0r2 (II)

Don Armstrong <don@donarmstrong.com> writes:

> On Sat, 22 Nov 2003, Anthony DeRobertis wrote:
>> In the United States, fonts can't be copyrighted. Only "font
>> programs" (e.g., the PostScript code used to produce the glyph) can
>> be. So there can be no copyright on bitmap fonts, and using a bitmap
>> font, a printout, or even tracing over an image on screen is
>> perfectly legal.
> I'm not sure that Fiest v Rural Telephone can lead us down this road.
> Assuming the font is a work of authorship (which many large or
> relatively large bitmap and TT fonts are) claiming a copyright on it
> is an entirely reasonable thing to do.
> Can someone who holds that non-trivial bitmap fonts [eg. fonts larger
> than ~4x5 pixels] cannot be copyrighted please walk through the
> rational for their position? [Ideally including case law citations.]
> (I mean, copyright almost surely applies to works of art primarily
> made up of fonts... things like Charles Demuth's "The Figure 5 in
> Gold")

Sure, but not to the font used.  From
    3.9) Are fonts copyrighted?
    First, let's distinguish between a font and a typeface.  A typeface is 
    the scheme of letterforms (which is really what you're probably talking 
    about), and the font is the computer file or program (or for that matter, 
    a chunk of metal) which physically embodies the typeface.
    A font may be the proper subject of copyright, but the generally accepted 
    rule is that a typeface embodied in the font is not (see Eltra Corp. v. 
    Ringer, 579 F.2d 294, 208 U.S.P.Q. 1 (4th Cir., 1978), and the House of 
    Representatives Report on the Copyright Law Revision, 94-1476, 94th 
    Congress, 2d Session at 55 (1976), reprinted in 1978 U.S. Cong. and 
    Admin. News 5659, 5668).
    The letterforms themselves are not copyrightable under U.S. law as a 
    typeface.  37 CFR 202.1(e).  A font is copyrightable if it adds some 
    level of protectable expression to the typeface, but that protection does 
    not extend to the underlying uncopyrightable typeface itself (see 17 
    U.S.C. 102(b)).
    In essence, a font will be protectable only if it rises to the level of a 
    computer program.  Truetype and other scalable fonts will therefore be 
    protected as computer programs, a particular species of literary works.  
    Bitmapped fonts are not copyrightable, because in the opinion of the 
    Copyright Office, the bitmap does not add the requisite level of 
    originality to satisfy the requirement for copyright.
    So, to summarize this point, a typeface is not copyrightable.  While a 
    scalable font might be copyrightable as a program, merely copied the 
    uncopyrightable typeface, and creating your own font, either scalable or 
    bitmapped, is probably not an infringement, assuming you did not copy any 
    of the scalable font's code.
    Two warnings:
    First, even if typefaces can't be copyrighted, they can be patented under 
    existing design patent laws.  35 U.S.C. 171.  Copying a typeface and 
    distributing such a font, while not a violation of copyright, might be an 
    infringement of the patent.
    Second, Congress has been considering design protection legislation for 
    many years (most recently, the 102nd Congress' H.R. 1790) which, if 
    passed, would protect typeface design.  If such a bill is enacted, the 
    above opinion will be obsolete and incorrect.


Brian T. Sniffen                                        bts@alum.mit.edu

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