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News & commentary on intellectual property issues.

Oct272010 | Steve O'Donnell

Can typefaces be copyrighted?

In short: No. In long: Noooo.

37 C.F.R. 202.1(e) states that a “typeface as typeface” is not material that is subject to copyright.

It would have been nice if Congress could have used slightly less circular language than “typeface as typeface,” but in their wisdom didn’t think that was needed.

What that means, and how it’s been interpreted by the courts is that a “typeface is an industrial design in which the design cannot exist independently and separately as a work of art.”  In other words, if the artistic expression in a typeface design can’t be separated form the utilitarian use of the typeface, then copyright is not applicable.

This doesn’t necessarily mean typefaces are completely foreclosed from protection. Design patents can be used to protect the design of a font such as in patents USD289422, USD340738, or USD266006. Also, a design that incorporates a non-copyrightable font, may still be copyrighted.  Further, if some computer code is used to dynamically scale or manipulate a font, that underlying code can be copyrightable.

Copyright law is a morass and navigating it really requires someone familiar with its particularities. Call or E-mail me to get together and go through any specific questions you have.

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Oct272010 | Steve O'Donnell

Can typefaces be copyrighted?

In short: No. In long: Noooo.

37 C.F.R. 202.1(e) states that a “typeface as typeface” is not material that is subject to copyright.

It would have been nice if Congress could have used slightly less circular language than “typeface as typeface,” but in their wisdom didn’t think that was needed.

What that means, and how it’s been interpreted by the courts is that a “typeface is an industrial design in which the design cannot exist independently and separately as a work of art.”  In other words, if the artistic expression in a typeface design can’t be separated form the utilitarian use of the typeface, then copyright is not applicable.

This doesn’t necessarily mean typefaces are completely foreclosed from protection. Design patents can be used to protect the design of a font such as in patents USD289422, USD340738, or USD266006. Also, a design that incorporates a non-copyrightable font, may still be copyrighted.  Further, if some computer code is used to dynamically scale or manipulate a font, that underlying code can be copyrightable.

Copyright law is a morass and navigating it really requires someone familiar with its particularities. Call or E-mail me to get together and go through any specific questions you have.

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