Fonts and the Law

What are the legal issues surrounding fonts? Thomas Phinney introduces
designers to what they need to know.

By Thomas Phinney

Note: Consult your attorney for advice on any particular legal matter. No
reader should act, or refrain from acting, on the basis of this article,
without seeking advice from legal counsel in the relevant jurisdiction.

Whether you use fonts as a graphic or web designer, or are perhaps starting
to make fonts, understanding the legal issues around them is important.
What are font lawsuits about, what legal protections do fonts have and how
does it affect you—whether you use fonts or make them?

Font lawsuits take many forms. Some are within a company, such as when
Tobias Frere-Jones sued Jonathan Hoefler. Some are business disputes
between companies in the font business, whether around
distribution/relicensing deals, making derivative fonts and selling them
(Adobe v SSi), making similar fonts (ITC v Monotype), or allowing fonts to
be embedded in documents (Monotype v Adobe).

Lawsuits over font “sharing” via websites are rare. Going after file
sharers is like a game of whack-a-mole, offering minimal rewards. Most
foundries stop after getting their fonts removed from the font-sharing
website, if even that. One egregious case that did go to court in Canada
was someone using the online alias Apostrophe getting sued by a group of
type designers and foundries in the early 2000s. Afterwards, Emigre’s Rudy
VanderLans told Fontzone’s Clive Bruton, “We have never lost any of these
types of lawsuits. Granted, many of the lawsuits to protect our font
software are settled out of court. Our goal is to stop people such as
Apostrophe. We’re in it to protect our work, not to clog up the legal
system and/or fatten the wallets of lawyers. This settlement gave us
exactly what we asked for.”

Such “piracy” can have consequences besides lawsuits. In the United States,
under the Digital Millennium Copyright Act (DMCA), copyright holders can
complain to infringers’ internet service providers. Repeat infringement
after warnings can lead to loss of internet service—although this is rare.

Filed lawsuits are rare, but getting contacted over unlicensed font usage
is very common.”

Whether you’re using fonts or making them, the main risks are around
underlicensed or unlicensed font use. Only one or two such lawsuits a year
reach public awareness, but in countless more cases, a foundry or its
lawyer contacts users about improper usage of fonts, and they settle out of
court. Often, these users are either partly legitimate customers, or just
made a mistake. For example, in 2010, the French anti-piracy agency
Hadopi’s new logo, created by an outside design firm, used a Porchez font
that had been created for the exclusive use of France Télécom, and
couldn’t legally be used by anyone else. Designers’ Lesson: Track your
usage and segregate any fonts you have only because of a specific client,
perhaps by utilizing a font-management app. Remember that few licenses,
aside from open source, allow you to give the fonts to third parties doing
design work for you—sometimes with an exception for output services.

License wording and terms are hard for foundries; they have to decide
whether to keep things simple and generous, or to charge extra for
additional rights. Emigre, for one, has an especially modular and clear
license where users pay separately for various different areas of use.

Proceeding to an actual lawsuit is expensive for everyone. In most cases,
the additional licensing fees involved, which go from users to foundries,
are small compared to potential legal fees on both sides. And that’s not
counting time on both sides, lost from actual work.

This is why filed lawsuits are rare, but getting contacted over unlicensed
font usage is very common. Said contact may not even be an actual problem!
In a previous job, my company got a letter from a well-known foundry about
what they thought was two cases of unlicensed font usage—but they were
mistaken. Designers’ Lesson: Keep records of your font licensing, as well
as who you hired for outside design work.

 With practice, you can scan a license quickly. If you don’t like it, don’t
license under those terms.”

Two foundries that are especially active in pursuing unlicensed or
underlicensed font usage have told me—under condition of anonymity—that
they might get as much revenue from enforcement (which one of them called
“retroactive license sales”) as from normal licensing! This relies on
dedicated staff as well as automated bots that can scan for font usage in
web pages and posted PDFs. Sam Berlow, previously general manager of Font
Bureau and chief executive officer of Type Network, says “license
enforcement ‘can’ be a substantial percentage of foundry income. It can
also be soul-killing and maddening. I recommend outsourcing it whenever
possible.” Berlow suggests foundries take a gradual escalation approach to
license enforcement, starting with a company-to-company letter before
involving lawyers.

What’s in a font license? Most, except open source, cover a specific number
of users or computers. Desktop licenses often exclude or limit web fonts,
while web font pricing often scales based on usage. Incorporating fonts
into an app is often extra. Some font licenses charge extra for various
other things, such as use in advertising, in logos or on T-shirts. Many
foundries don’t allow modifications, or require that they do modi cations
themselves. One foundry’s license even says that you may not use its fonts
for a political or religious purpose without additional permission! A few
offer some sort of trial use. Designers’ Lesson: Font license
generalizations are just that—font licenses can differ and usually do,
which is why you must read them!

Fonts from the same foundry or under the same open-source license will
generally have the same license, which helps. With practice, you can scan a
license quickly. If you don’t like it, don’t license under those terms. I
know this may sound excessive. I don’t usually read software licenses...
except for fonts, because there’s a real chance of the license not allowing
what I want to do. You need to read font licenses, too.

Kinds of Legal Protection for Fonts

The end-user license agreement (EULA) is a legal contract that says what
you can and cannot do with the fonts. Except for fonts you have designed
yourself or commissioned, or those from “warez” sites with no license at
all, most fonts on your computer are licensed to you, not owned by you—even
open-source fonts.

Copyright is contentious for fonts in the United States, but the companies’
making fonts, and their lawyers, have long acted as if fonts are protected
by copyright. The details are complicated.

In 1976, a new Copyright Act was enacted by Congress that specifically
excluded fonts from copyright protection. In the mid-’90s, Cynthia
Hollandsworth Batty led the type community in convincing the Copyright
Office that digital fonts might be considered software, and be treated as
such for copyright. So instead of showing what the font looks like, a US
copyright application for a font consists of text-format code dump
representing everything, even glyph shapes.

Since then, the US Copyright Office’s Compendium of Practices has said that
a computer program that generates a particular typeface or “typefont” may
be registered, but not the typeface/typefont itself (§723). However, as
intellectual property lawyer Karen Shatzkin explains it, “computer programs
are entitled to copyright only if they contain new creative elements, which
the Copyright Office is not equipped to judge, and your registration is
only prima facie evidence. Prevailing in litigation may well require that
you prove its entitlement to copyright, which, even if you succeeded, would
cost a fortune.” And, of course, this would protect the
font-file-as-software, not the appearance.

For more confusion, the Copyright Office in 2018 started sending letters to
some font copyright applicants saying copyright required applicants to
explicitly claim that they had in fact input the code as text to create
font glyph shapes (as opposed to using a drawing interface, as is nearly
universally done). But copyright registrations for fonts-as-software have
quietly resumed since, and neither the Office nor multifoundry lawyer Frank
Martinez, who led objections to this, would comment on the record, leaving
the situation murky at best.

>From a software perspective, this—typing code versus drawing vectors on the
computer—is an arbitrary distinction with no difference in the output.
Indeed, as chief executive officer of FontLab at the time, I consulted with
FontLab engineering vice president Yuri Yarmola, and he promptly put the
“source” text-based glyph editing mode into FontLab VI. You could then edit
any glyph either as source code text or via the visual editor—and changes
made in either affect the other, in case anyone wanted to convince the
Copyright Office as to the irrelevance of the distinction.

Why do foundries badly want copyright to apply to fonts? Copyright is
automatic and inherent in authorship, without even requiring registration,
and copyright on new works generally lasts for 70-plus years, depending on
the country, author’s lifetime, etc. Additionally, registering one’s
copyright has the advantage in the United States that it can make
infringers liable for “statutory damages”—a range of cost per work,
regardless of the actual damages (actual loss to the copyright owner).

Design rights protect the abstract design of the typeface; they are the
only legal protection that protects the appearance alone.

Design rights vary in form by country. In the United States, design rights
take the form of a “design patent,” which is a different category than the
usual “utility patent.” Design patents only last for fourteen or fifteen
years and must be actively applied for, with noticeable fees on top of any
lawyers’ fees, and are only relevant in the United States. Result? Font
design patents are uncommon; Adobe routinely applies for them, but few
others do. Unlike copyright, though, there is no question that design
patents can be applied to fonts. In fact, US design patent number one was
for a font, issued to George Bruce of the Bruce Type Foundry in 1842! In
the European Union, registering a “Community design” gives protection for
up to 25 years. In some circumstances, an “unregistered Community design”
may also be protected, for a period of three years.

What does it mean that design rights protect appearance? If you sell a font
in the United States that looks too much like Adobe’s Hypatia Sans
(designed primarily by me, but owned by Adobe), it could infringe Adobe’s
US design patent—even if you didn’t start with Hypatia Sans’s font code or
outlines.

Trademark requires registration, protecting just the name, in the
registered domains. Thus there are three active US trademarks on Arial in
different domains: one for the font, but also for climbing/mountaineering
ropes and a wireless call system. Anyone can claim a trademark (™), but
only registered trademarks can use ®. Trademarks last forever as long as
one uses the name in commerce and pays renewal fees.

Which protections matter? Font lawsuits often rely on as many areas as can
be brought to bear, including copyright and trademark—and design rights,
where applicable. But the complexity and uncertainties of US copyright for
fonts has led a few lawyers and foundries—such as Shatzkin and her longtime
former client Darden Studio—to conclude that both foundries and users are
best off relying solely on a fair but highly enforceable license. ca

Thomas Phinney is a type designer who has made fonts for Google and Adobe,
and is proprietor of Font Detective LLC, where he investigates forged
documents involving fonts that did not yet exist, and other actual crimes
against typography. He has been cited on font forensics in media from The
Washington Post to the BBC; consulted by organizations ranging from PBS to
the US Treasury; and given sworn affidavits in at least six countries.
Phinney was on the board of ATypI from 2004–2020. Previously, he was chief
executive officer of FontLab and a product manager at Extensis and Adobe.
Phinney has an MS in printing from the Rochester Institute of Technology
and an MBA from the University of California, Berkeley.

KR     Nawaz sharif prosecution wrt doc of antedated acts is only a minor
issue for him to lose. As a matter of fact MS and many USA companies take
the volunteers to test their products including the fonts, for many years
before releasing them to the markets; I was one among MS when they released
a font long ago. So had I drafted a doc before their marketing periods,
totally it cannot be held untruth; also in USA licensing is monitored even
if as an Indian staying for long in USA, you are also being monitored while
using the fonts; in USA licence is a must; on the contrary including India,
many nations are allowed to use freely the fonts as an education Medium and
let freely; but the traders misuse them and make money. So even such
non-marketed fonts could be given free or sold by the computer trader to
you which you could be using even before it is marketed; and even if you
point out the source, THAT SOURCE may deny such also. Hence Nawaz removal
was vbased on font is an unacceptable theme where politicians come out of
brickwalls so easily Thank you K Rajaram IRS 241024

---------- Forwarded message ---------
From: 'venkat giri' via iyer123 <[email protected]>
Date: Wed, 23 Oct 2024 at 22:56
Subject: [iyer123] MICROSOFT CALBRI FONT GATE...SCANDAL
To: Iyer <[email protected]>


*Respected sir/s,*

*SUBJECT:** A MICROSOFT FONT LEAD to **DOWNFALL.*

*CALIBRI** (/k**əˈ**li**ː**bri/) is a digital sans-serif typeface family in
the humanist or modern style**.*

          *Calibri** is a modern sans serif family with subtle rounding on
stems and corners. It features real italics, small caps, and multiple
numeral sets. Its proportions allow high impact in tightly set lines of big
and small text alike.*

*‎* *‎‎* *‎**Calibri is a font family that's commonly used in Microsoft
Office documents, resumes, and other projects: *

*Calibri was the default font in Microsoft Office 2007 and later**,
replacing* *Times New Roman in Word and Arial in PowerPoint, Excel,
Outlook, and WordPad. It was a popular choice for Word documents,
PowerPoint presentations, and Excel spread sheets. *



*Calibri is a good choice for resumes because it's easy to read, has a
professional appearance, and is compatible across platforms. *

*In January 2024, Microsoft replaced Calibri with Aptos as the new default
font for Microsoft Office. *

*For almost 15 years, Calibri has reigned as the default and therefore
dominant font choice for Microsoft systems.*

*When reading text on a screen, serif fonts (Garamond and Times New Roman)
are harder to read than sans-serif fonts (Calibri and Arial). Since Word is
a program for writing on computers and users read text from a monitor, it
made sense to ditch the Times New Roman serif font as standard.*

*Calibri replaced **Times New Roman at a time there was a shift from CRT to
LCD screens. The changing default type was a response to the new way images
were brought to the screen. History might be repeating itself if we are
expecting a new type of display soon.*

*Calibri replaced Times New Roman as the suite's default font in Office
2007, at a time before "Retina" displays and when 1024×768 and 1280×800
screens were still the norm—a Clear Type font, Calibri itself was a
response to the shift from CRT to LCD screens.*

*              Microsoft made the decision to switch to Aptos Narrow as the
default font for Microsoft Office because it is a modern, clean, and
legible font that is optimized for on-screen reading. It was chosen based
on extensive research and testing to improve the overall user experience.*

 *CORRUPTION, PANAMA PAPERS and **A Font*

        *A key piece of evidence in the corruption investigation against
the  former Pakistan prime minister and his children was **Microsoft’s
Calibri font.*

*The PM’s daughter, Maryam Nawaz, **used Calibri** to forge documents about
illegal offshore companies, Nielsen and Nescoll Limited, which were flagged
in the Panama Papers.*

*The Calibri font wasn’t publicly available to computer users worldwide
until **2007*

*A key piece of evidence in the corruption investigation against the prime
minister and his children was **Microsoft’s Calibri font.*

*Pakistan Prime Minister Nawaz Sharif, has been forced to leave after he
was disqualified from office by the Supreme Court.*

*The documents submitted by Maryam Nawaz — purportedly created in 2006 —
were typed in the Calibri font.*

*But there was only one problem.*

*The font wasn’t publicly available to computer users worldwide until 2007;
according to the investigation team’s leaked report.*

*Nawaz Sharif resigned on July 28, 2017, after Pakistan’s Supreme Court
ruled he was no longer fit for office.** His downfall followed after an
investigation into his family’s wealth triggered by the release of the
Panama Papers in 2016. These documents leaked from the Panamanian law firm
Mossack Fonseca, exposed various shell companies and tax-evasion strategies
linked to some of the world's wealthiest individuals.*

*            Sharif's family wealth came under scrutiny when the Panama
Papers connected his children to offshore companies used to purchase
residential properties in London. Although the prime minister's name did
not appear in the documents, his three children were mentioned. The
family’s undisclosed wealth led to widespread protests in Pakistan and
speculation that these companies served as fronts for money laundering.*

*                     The Sharif family maintained that the London
properties were acquired legally. They claimed the funds for the purchases
originated from family businesses in the United Kingdom and the Gulf, as
well as from the sale of Gulf Steel Mills in the United Arab Emirates.*

*Investigation Pivoted Around Calibri Font*

*  In response to the allegations, a Joint Investigation Team (JIT) was
established to examine the family’s financial dealings.  *

*Maryam Sharif submitted documents intended to demonstrate her innocence. *

*Pakistan's court-appointed investigators sent these documents to a lab for
analysis, where **experts identified the font discrepancy.* *One expert
noted that the **documents were forged and **most likely created at a later
point in time,** as in when it came under scanner. *

*“Calibri [font] was not commercially available before **January 31, 2007**,
**and as such, neither of the originals of the certified declarations is
correctly dated and happens to have been created at some later point in
time,” Radley Forensic Document Laboratory expert Robert W Radley said on
documents submitted to him by the JIT.*

*'FONTGATE SCANDAL’*

*The discrepancy in the font used in documents dated to 2006 led to
allegations of an attempted cover-up by the Sharif family and sparked the
"Fontgate" scandal. *

*               Supporters of the Sharif family countered that the font was
available as a "beta version" as early as 2004. The debate quickly
escalated into a political battleground, with both sides waging a proxy war
on the Wikipedia page dedicated to Calibri. The page was edited 150,000
times in just two days, prompting Wikipedia to lock down the entry to
prevent further changes.*

*        The defence presented by the accused Sharifs, claiming they used a
beta version of the Calibri font, was **discredited by the font's inventor
himself**. Lucas de Groot, the creator of Calibri, told BBC that beta
versions were typically only used by "tech geeks" and not by ordinary
companies or government officials.*

*              The JIT’s report accused Nawaz Sharif of concealing assets,
underreporting his wealth, and falsifying evidence. The investigation
highlighted “significant gaps and disparities among the known and declared
sources of [the family’s] income and wealth.” The Supreme Court of Pakistan
ruled Nawaz Sharif ineligible to hold public office, leading to his
disqualification as Prime Minister.*

*Regards*

*V.Sridharan*

*Trichy*

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