A friend of mine is working on a children’s book and wanted to use some highly stylized fonts for the story. She asked me if she had to worry about copyright for any fonts she might use, and I was stumped. Copyright protection generally extends to an “original work of authorship fixed in a tangible means of expression.” My mother Pam Galvani is a calligrapher, so I know a little about fonts and typefaces. Clearly, fonts are the product of creative work, and they therefore seem to technically qualify for copyright protection. But I have never come across the issue before and something in my mind was telling me that the issue was more complex than simply meeting the test of an “original work of authorship fixed in a tangible means of expression.”
Intellectual property theory often recognizes public policy, and it seemed possible that Congress could have said that fonts should not be subject to copyright protection so that the use of language would be proprietary. In other words, at first I though Congress might have decided that giving a select few font owners the power to exclude others from using fonts would limit the very ability of people to communicate and thus might have removed fonts from copyright protection.
A little research later…. Congress and the courts have said something along those lines. One case notes (calligraphers begin crying here) that “typeface is an industrial design in which the design cannot exist independently and separately as a work of art.” Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978). The regulation 37 CFR 202.1(e) says “typeface as typeface” is not eligible for copyright protection or for applications for copyright registration. What does “typeface as typeface” mean? Essentially, fonts as you think of them are not protected by copyright. They are specifically excluded by statute. However, software that produce fonts – generally PostScript or TrueType – are protected because they are computer programs, which typically are protected by copyright So you get a slight dichotomy: copying the computer program to produce the font would be copyright infringement, but “copying” a single character of the same font would not be copyright (generally).
That doesn’t mean that you can go out and copy any stylized lettering you see in print. The design of the letters may nevertheless be protected by copyright – it truly depends on the nature of the design, the amount of creativity involved, the amount of functionality, and other factors. And to address the letter-artists’ worries: while the individual design of a letter may not fall under copyright protection, your greater work probably is protected as an artistic piece, considering the arrangement of lettering, the use of space, background, organization, and all the other creative aspects that go into your work. Concerns beyond copyright: copying lettering could also raise trademark issues depending on the content you are emulating.
I usually don’t double-down with this disclaimer, but here I will. This area of copyright is complex and highly fact dependent. This post is a really high-level view of fonts, typefaces, and copyright. Please consult with an attorney before proceeding with a decision involving this area of the law.