When developing a new brand or product, creatives often give considerable attention to avoiding intellectual property infringement. Trademark lawyers are similarly vigilant to avoid infringing another company’s mark. However, when a company creates its labeling and marketing materials, they tend to not give enough thought to the issue of fonts. The fonts that a beverage company uses to create its website, print advertisements, bottling, labeling, and packaging may be protected by copyright and the company may not have appropriately licensed them. If a company uses a font without the permission of the owner of that font, or outside of the scope of that company’s license, that company could be subject to a claim of copyright infringement.
Typeface Versus Fonts
First, we need to draw a distinction between two terms that are often used interchangeably: fonts and typeface. A typeface refers to a set of characters that share the same design or style. Typeface is the collective name of a family of related characters (e.g., Times, Arial and Garamond). It describes the overall look of the characters—their design and aesthetics. A font, on the other hand, is a computer program that is used to create text characters. Fonts are often installed into, and made available through, a word processing program such as Microsoft Word or design programs such as Adobe InDesign. In the digital era, the distinction between these two terms has become blurred, as many people use “font” to refer to what is technically a typeface.
In the United States, typefaces themselves are not protectable under copyright law. Code of Federal Regulations, Ch 37, Sec. 202.1(e) states: “[t]he following are examples of works not subject to copyright. . . (e) Typeface as typeface.” In addition, the Copyright Office’s Compendium of US Copyright Office Practices states that “[t]he Office cannot register a claim to copyright in typeface or mere variations of typographic ornamentation or lettering, regardless of whether the typeface is commonly used or unique.” Typefaces may be eligible for a design patent, which protects new, original and ornamental designs. However, design patents have significant limitations, must meet very specific requirements and are rarely used.
A font, on the other hand, is computer software that is protectable under copyright law because it is an original work of authorship in the form of software code. Typefaces cannot be copyrighted, but the font software used to display them can be. This distinction is crucial because it separates the visual design of characters (typeface) from the underlying code that instructs computers and printers how to reproduce those characters (fonts).
Font Infringement and Enforcement
Type foundries have made available a number of fonts that are free (often referred to as open source fonts) or are otherwise in the public domain. However, if a font is copyright protected, then copyright owners can sue companies and others who use that font without a license for copyright infringement, and a finding of copyright infringement can result in substantial liability. A copyright owner can seek actual [...]