How can two typestyles appear identical without constituting copyright infringement?

copyright

In the United States, a typeface, that is, the design of a letter style, the way the letters appear, is not protected by copyright. Hence, a letter style may be designed to look like an exact duplicate of another without infringement. However, a font, that is, the unique underlying software code that allows you to print a particular typeface, is protected. This has long been the position taken by both the US Congress and the US Copyright Office.

The group Georgia Lawyers for the Arts in an online article posted February 10, 2014, explains it this way:

“A typeface is a set of letters, numbers, and punctuation marks whose forms are related by repeating certain design elements that are consistently applied. Put more simply, typeface refers to the way a set of letters or numbers appears… A font, on the other hand, is the computer program that tells the printer or computer display how a letter or character is supposed to be shown. In the United States, fonts are protectable under copyright law. Typefaces, however, are not.”

Similar typefaces may be similar in appearance. Two typefaces may even appear identical. But if they are each based on their own unique digital code, there is no copyright infringement in the US. A copyright infringement occurs when someone, without permission of the original author, copies a font file, which is actually a small software program. A font file is protected as an original work.

Interestingly, the name of a typestyle may be protected as a trademark.

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Is a typestyle protected by copyright?

No, it isn’t. At least, not in the United States. On the other hand, a font IS protected by copyright.

Does this seem confusing? If so, it’s because so many people use the term “font” to refer to a “typestyle” or “typeface.” The two terms are really not interchangeable.

A typeface, or typestyle, is a set of letters, including numbers, punctuation and assorted glyphs, that all share similar design characteristics. They may have similar shapes, strokes, serifs and other details. In printed form, they all look to be part of the same family due to their design. In the United States, a letterstyle  does not qualify for copyright registration.

So what is a font? Though many people use the word ‘font’ as a synonym for letterstyle, it is really what is used to produce letters in a form that can be viewed. A font is a piece of software, a program really, that allows a computer to command a printer (or router, or laser engraver, or embroidery machine) to produce the letters in physical form. Originally, a font was a set of metal type pieces in a particular size and typestyle for loading onto a printing press. To create a complete font of type was labor-intensive and expensive. Nowadays, a font is generally composed of unique digital code. This code is protected by copyright, and it cannot be copied without permission from the copyright owner.

Additionally, font names can be protected by trademark law, just like brand names. This is why you can buy a font (actually, a license to use the font) for your computer for printing letters that look exactly like Helvetica, but they are called something else. Someone owns the Helvetica font, the name and the underlying software, and that’s not the license you bought. You bought a license to use a differently programmed piece of software with a different name. But what you print looks just like Helvetica letters, because the Helvetica font owners don’t own what the letters look like, the design.

Of course, this is US law. The laws on fonts and typestyles may  and does vary in other countries.

Helvetica       Helvetica

Helvetica   Swiss

Can logos receive copyright protection?

Many people in the sign industry believe the answer is a simple “yes.”

But the truth is that there is much misinformation passed around in the sign business about intellectual property law in the US. The simple answer to whether logos can receive copyright protection is actually, “yes and no.” For a work to have copyright protection, it must meet a certain level of originality. Most simple logos do not meet the criteria. Many ornate logos do meet the criteria.

Here’s why, from the US Copyright Office—

“What Is Not Protected by Copyright?”  Among other things, “titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring…” —Copyright Basics, Circular 1, page 3, US Copyright Office.

populous003

Yesterday I put the Populous logo on a sign for their Kansas City office and I was struck by how simple and generic it looked. Populous is an international architectural firm that dominates the market for designing large sports venues like Yankee Stadium in New York, Wembley Stadium in London, Soccer City Stadium in Johannesburg and many, many others. The company’s logo is simple type with no ornamentation. It does not meet the criteria for US copyright protection.

subway002

The Subway sandwich logo is more ornate. There are embellishments and stylized lettering. Does it have copyright protection? No. Subway tried to get it, but it was denied.

Subway logo denied copyright protection July 16, 2013:

Subway logo denied copyright protection

The well-designed Best Western logo, with its five-sided shield and graphic crown was denied copyright protection in 2006.

Best_Western

Best Western logo denied copyright protection March 7, 2006:

Best Western logo denied copyright protection

More recently, the Geek Squad logo was denied copyright protection in 2012.

Geek Squad

In appealing the decision, Geek Squad claimed that its logo was not much different from the Hot Wheels logo in its level of creativity. The Hot Wheels design had been given copyright protection previously.

Hot Whels

But in its decision, the Copyright Office determined that the Geek Squad design was not in the same category as the Hot Wheels logo, with its flame “pictorial” incorporated into the lettering. What do you think?

Geek Squad denied copyright protection April 13, 2012:

Geek Squad logo denied copyright protection

In the final analysis, to most companies, it doesn’t matter that their logos cannot receive copyright protection. Because trademark law can protect a logo that represents a company’s goods or services. And trademark protection is far more suited to safeguarding logos. Trademark protection is more customized. It’s narrower in its scope in some ways, but more comprehensive in others.

Subway owns the trademark “Subway.” If another sandwich shop calls its sandwiches “Subway” sandwiches, it is likely an infringement, even if the design is different and if  signs don’t look like Subway signs. What if a sandwich shop by another name has signs or logos that look like Subway signs? It could very well be a cause for a trademark infringement suite from this standpoint as well if the competing logo is confusingly similar. Many companies get trademark protection for their logos both as a word, and a separate registration for the distinctive design of the word, with it shape, colors, etc.

On the other hand, “Ace” is a hardware trademark, but another company owns an “Ace” trademark, too. Ace Bandages. Both words are protected trademarks in their respective industries. Since the two industries are so far removed from each other, what is the likelihood of confusion between the Ace brands? Very little. So both enjoy trademark protection and neither is an infringement of the other.

The criteria for determining infringement has to do with, among other things, whether confusion is likely to be caused in the minds of consumers.

For example, from a distance, red, white and blue stripes on a real estate yard sign could make viewers think the property was listed by the real estate company ReMax, or that the company listing the property was associated with ReMax. So these stripes are protected by a trademark registration. This registration is in addition to other trademark registrations that ReMax has, such as their balloon logo.

Remax stripes

Trademark law protects not just words, but colors, shapes, even sounds associated with products or services. No other telecommunications company can use the T-Mobile shade of magenta in its advertising, for example. The color is protected by trademark. The shape of the Coca-Cola bottle is protected. The NBC chime sound is protected.

Trademark, as opposed to copyright, is not so much designed to prevent copying, but to prevent confusion.

So whether logos can be protected by copyright or not is viewed by many companies as a moot point. Trademark law usually provides all the protection needed.

The Intellectual Property Jungle

Artists, writers and inventors transform ideas into tangible property—intellectual property. Any product of the human mind that can be protected under law is intellectual property. The field of intellectual property is a jungle of rights, protections and rules. It is complex, evolving and often not clearly understood among sign makers. The basic premise underlying this field of law is that by granting a kind of monopoly for a time to people who create intellectual property, creative endeavors are encouraged. There are detractors who claim that intellectual property law does not really work the way it was originally intended. There may be some truth to this, but intellectual property law remains an important component in the body of law in countries the world over.

Ownership of intellectual property can be compared to ownership of other forms of property. The owner of a home, for example, may exclude others from using the home, or from even trespassing on the property. A homeowner can sell or lease a home to someone else, or even leave it to someone in a will. Likewise, an intellectual property owner can sell, lease or will a copyright, trademark or patent.

TRADEMARK, COPYRIGHT OR PATENT?

Do trademarks, copyright and patents protect the same things? No. These are three different animals in IP jungle because they protect different types of intellectual property.

A copyright protects an original literary or artistic work. It protects what the US Copyright Office calls “works of authorship.” A trademark typically protects brand names and logos on products or services. A patent protects an invention.

To illustrate the differences, here is an example found in one of the government’s fact sheets: If you invent a new type of vacuum cleaner, a patent can protect the invention itself. Registering a trademark protects the brand name of the vacuum. A copyright would protect a TV commercial advertising the vacuum or a printed owner’s manual that comes with the purchase.

Of course, these examples are very simple. Intellectual property law is actually very complex and is its own specialty in the practice of law. Attorneys who specialize in it have degrees in both law and engineering.

I took some classes in intellectual property law at a local community college in order to learn some basic concepts and clear up some of my own misconceptions. The classes were fascinating and well worth the money. I learned enough to know that some of the information passed around in the sign industry is either inaccurate or outdated. And I learned enough to know that I should never attempt to give legal advice—ever. Still, the basic concepts underlying copyright and trademark in the US are not super complicated, even if their practical application can be.

I’ve learned, for example, that copyright is actually a bundle of five rights, not all of which apply to the sign and graphics industry. I’ve learned that protection for a logo or brand derives mainly from trademark law, not so much from copyright law. These two protections are sometimes confused by sign makers. It doesn’t help the confusion that sometimes copyright and trademark protections overlap.

Some common beliefs I have learned that are untrue: That everything found on the internet is in the public domain and free to use. The truth is almost the opposite. It should be assumed that everything found on the internet is copyright protected unless specifically stated otherwise. Another misconception is the so-called “poor man’s copyright.” Supposedly, you can mail a copy of your artwork to yourself and leave it unopened on arrival as proof that you are the original artist. This procedure actually proves nothing, except that you mailed an envelope on a certain day. The “poor man’s copyright” has no standing in court.

Further questions: Can you get trademark protection for a color? Which lasts longer, copyright or trademark? Does a domain name qualify as a trademark? I plan future posts to share information on these and other questions.