Ask a Font Creator: Copyrights & Trademarks
Posted on 3rd November 2016
I’ve seen a couple of questions recently regarding copyrights and trademarks, so I thought this week I’d go over a few basics from the angle of a font user, whether you're a crafter, creator, or designer. I’m going to touch on copyrights on fonts themselves, as well as copyrights and trademarks on phrases that you may want to use in your font-based projects.
I’ll point out right now that this overview will be centered around USA copyright and trademark law (as an American, it’s the set of laws I’m most familiar with). Other countries do have some similarities, but also some significant differences (we’ll talk about a couple of those coming up). Also, bear in mind that I'm not a lawyer -- just a creator who's dealt with copyrighting intellectual property.
Font used in image: Salamanca TF
The symbols here are: copyright (C in a circle), registered trademark (R in a circle), and unregistered trademark (TM).
First off, let’s talk about the difference between a copyright and a trademark. Both are ways to register a piece of intellectual property so that the creator has some measure of protection. However, they have a very distinct difference.
Copyright protects an entire original work, including “literary, dramatic, musical, artistic, and certain other intellectual works.” So if you write a song, or a novel, or create a film, you can copyright it. You’ll hear a lot of people say that “as soon as you create a work, it’s automatically copyrighted to you.” This is technically true, BUT. At least in the USA, the work has to be registered with the copyright office if you want to sue another party over use of the material.
I can tell you that to register a single work with the US copyright office, it’s a $35 fee. And it doesn’t matter if that single work is a two-minute song or a 100,000-word novel; because it’s one thing, the same fee applies. So for some works, it may be worth that fee, while for other things, it may not be worth the price to you. (I’ll point out here as well that the concept of a “poor man’s copyright,” which basically means mailing a copy of the work to yourself in order to get a dated postmark on the envelope, then never opening it . . . isn’t really a thing. Some countries may honor that postmarked envelope as proof of the date of creation, but in the USA, it doesn’t hold weight.)
One of my actual copyright registrations. Totes worth it (for some things)!
Trademark, on the other hand, protects words, names, phrases, or symbols that “distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods.” It’s more to protect a person or company’s brand—if Ritzy Shoes uses a phrase like “a sweet treat for your petite feet,” and that phrase becomes a well-known slogan for Ritzy, they’ll want to trademark it so that Cheapo Shoes can’t use the same phrase to advertise their own products.
Trademarks are issued specifically to cover a product category (or set of categories), so you may see trademarks for the same word or phrase protecting multiple companies. However, you can’t trademark the same thing for two companies in the same category, because that might cause confusion in the marketplace. A great example is Dove chocolate versus Dove soap. They both have the name trademarked in their respective areas (food vs. personal hygiene), which is completely OK with the trademark office because there’s no chance for the two to be confused with each other. If a company wanted to trademark the name Dove for their new hand lotion line, they’d run afoul of the soap company that already has a trademark in that personal hygiene category; there’s too large of a chance that the new company could be confused with the existing one in the marketplace.
So how do copyright and trademark laws relate to fonts? Well, here’s where we get a little weird, at least here in the USA.
Remember back in vocabulary #1, where we talked about the difference between a “typeface” and a “font”? Well, for modern-day copyright purposes, the shapes of the letters themselves are considered to be the typeface, while the computer file itself is considered to be the font. And in the USA, only the font can be copyrighted—not because of its merit as an artistic work of intellectual property, but because the computer file is considered to be a piece of software, and software can be covered by copyright.
So does that mean that the typeface, meaning the shapes of the letters themselves, can’t be copyrighted?
Yes. It does mean that. In the United States, a typeface cannot be copyrighted. Even though, you might argue, the shapes of the letters should be considered an “artistic work.” (This isn’t the case everywhere, though; Germany recognized that typeface designs can be copyrighted back in 1981, and England made the same decision in 1989.)
The way font creators protect themselves with the copyright on their font software is to issue a license with that software, which spells out the ways it can (or cannot) be used. A font might be licensed just for personal (not-for-sale) use, or commercial (creating client work for pay) purposes. It might be just for printed projects, or it might allow you to embed it on your website. This is why it’s important to always read over the license that comes with your font. (And this goes double for free fonts, which can often be far more restrictive than paid fonts. And if there’s no license? Play it safe, don’t use it.)
So could you, if you were a particularly shady individual, do the following: buy a font, print out all of the letters in that font, trace over them, scan them back into your computer, pop them into some font creation software, create a font, and then sell it as your own? Quite possibly, because you haven’t made a copy of the font (meaning the computer software), you’ve just made your own versions of the typeface. Gross? Yes. But really, who’s going to take that kind of time? We’re talking hours, days, probably weeks in order to do it right. Compare the value of the time it would take to the cost of buying the font, and buying the font wins every time.
BUT WAIT, you may ask. Why is there such a stigma about tracing, then? For example, let’s say I find a picture online of a print I really like:
Font used in image: DeHangster
So like I was saying, I really like it! And I tried the font identification groups, and nobody knows what font it is (ignore, of course, the caption above. :) ). So why can’t I just copy this image, crop it, and run the “trace” function in my software of choice so I can have this phrase? Isn’t that the same as the shady, gross, but probably not 100% illegal technique that was just described?
First off, we’ve already covered that it’s gross and shady. But more importantly, this isn’t the same, and here’s why: the shapes of the individual letters may not be copyrightable by the font creator, and yes, you aren’t copying the font software itself . . . but the arrangement of these particular letters in this particular way CAN be considered its own artistic work, and as such, is protected. Weird, right? The fonts themselves are copyrighted by the font creator as computer programs, but the specific layout is copyrighted to the person who designed that work. Compare it to using ANY software program to create an artistic work—laying out letter shapes from a font is no different than using Illustrator or CorelDraw or any other program to lay out digital shapes (paint strokes, lines, etc.) in a specific way.
Speaking of phrases…
Let’s move on to that topic! Copyright over phrases taken from longer works (books, movies, songs, etc.) is a deep, deep well of sometimes confusing information. At its most basic, however:
Fonts used in image: Roomfer/Roomfer Sans, Pinebrick
Anything written before 1923 is fair game. Works created up through 1922 have all fallen out of copyright, and are now part of the public domain. This is why you see so many Shakespeare quotes out there. It’s also why there are so many Sherlock Holmes projects these days—50 of the Holmes stories were written before 1923, and 10 were written after. So anything from those first 50 stories is fair game in the public domain, and only the specific scenes, dialog, and descriptions from those last 10 are covered by copyright. So the quote above on the left is totally available to use!
Things created between 1923 and 1964 start getting weird. During that time, the owner of a copyright had to apply to renew it during the 28th year after publication, or else the copyright was lost. I don’t know about you, but I don’t think I could remember to renew my copyrights after 28 years. Although many rights holders did, especially those rights holders who are large companies with employees whose job it is to ensure that rights don't get lost. So be wary of anything that was created during this period. For example, the quote on the right up above is from The Sound of Music, written in 1959 and definitely renewed at the proper time to keep it covered, so the mocked-up print above is not one that you could sell.
If copyright was renewed at the appropriate time, any work created between 1923 and 1977 has a 95-year copyright term. Which means that protected items from 1923 will enter the public domain in 2019. (This can include a lot of items that might surprise you. For example: many, if not most, translations of the bible currently being sold were translated after 1923, and are covered by copyright.)
After 1977, forget about it. Starting in 1977, the span of a US copyright was changed to the life of the creator plus 70 years. So even if a creator made something in 1977 and passed away immediately, their estate will still hold the copyright on that work until the year 2047.
Some works can straddle the years in weird ways—for example, L. Frank Baum’s book The Wonderful Wizard of Oz was written in 1900, so it’s now in the public domain. The film The Wizard of Oz, however, was created in 1939, and is still under copyright. So you could use quotes galore directly from the book, but if the movie version altered a line, you can’t use that. (I’ll also point out here that attribution does not protect you from copyright infringement. If you make a shirt with a quote from a Taylor Swift song, and add “- Taylor Swift” to the bottom, you’re still violating copyright on those lyrics.)
Fonts used in image: Kissita, Scratchbook
But for our crafting purposes, there’s a loophole in copyright law: bodies of work may be covered, but short phrases are usually not covered . . . unless that short phrase is so identifiable with the original work that “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” That means that a phrase has to be so obviously from that one work, and no possible other work, that the majority of the public would recognize it.
My examples above show two three-word phrases. (Yeah, I’m considering “E.T.” to be one word.) The first one, “as you wish,” is a combination of words that’s been used a billion times by a billion people in a billion situations. So even though it’s totally a quote from The Princess Bride, it’s a common enough short phrase that it doesn’t get copyright protection. On the other hand, “E.T. phone home” is a phrase that was probably never, ever uttered before the movie E.T. the Extra-Terrestrial came out. It’s a tiny three-word phrase that is so indelibly connected to the original copyrighted work that even though it’s a “short phrase,” it’s protected by copyright. (The filmmakers sued a vendor who was selling knockoff merchandise with the phrase on it, and won.)
And speaking of short phrases, let’s circle back around to trademark. Trademarks can cover those short phrases that aren’t copyrightable, but are identifiable with a company or individual, and have to be registered for specific categories of products. You might be surprised at some of the phrases and things that are trademarked: Shabby Chic, Roll Tide, Crossfit, Let’s Get Ready to Rumble, That’s Hot, Bam!, any image of a yellow tractor with yellow wheels (John Deere), and the color “Tiffany blue” (you can use the color, but you can’t describe it as Tiffany blue).
Side note: company names can also be trademarks, and shouldn’t be used to describe a generic version of that product. Things like Chapstick, Velcro, Q-Tip, Kleenex, Popsicle, Band-Aid, Styrofoam, Onesies, Crock-Pot, Bubble Wrap, Jet Ski, and so many more are registered trademarks. This doesn’t have much to do with font use, I just think it’s really cool. There's always an alternate generic that should be used insetad, like lip balm or self-adhesive bandage or cotton swab or hook-and-loop fastener. (Ask me how I know, and I'll tell you about how I used to host a game show at Disney World all about Velcro® products.)
Fonts used in image: Secret Words Display & Secret Words Script.
So how can we stay on the right side of copyrights and trademarks?
For fonts, make sure you read the license that comes with your font, so you know you’re using it in an allowed way. If you aren’t sure, contact the designer! I get a couple of emails every week from people describing their project, and double-checking if it’s an acceptable use, and I’m always happy to answer them.
If a font is sold on multiple sites for the same price, but you can find it on one weird little site for free, it’s most likely an illegal copy of the font software. Don’t download it! I’ve heard too many stories of people getting glitched font files, or downloading a font file from a shady site and finding out that some malware or a virus hitched a ride along with the font. If you aren’t sure about whether a site is legitimate, you can always check in with the font fans over at the Fonts and Typography group on Facebook. Or you can get in touch with the designer in this case, too! I’d love to find out if someone’s giving away my fonts for free—it gives me a chance to dust off my cease-and-desist letter.
As far as creating works with phrases goes, the best bet is always to write your own phrases. That way you know you’re putting something original out there! If you want to use a phrase from someone else’s written work, check what year it was created—it might be in the public domain. If it’s something recent, there’s always the option of licensing the phrase (or a trademarked image or words) from the rights holder. It’d be way too expensive to license some Coldplay lyrics, or images from Disney cartoons, but there are tons of independent writers, artists, and creators out there who would be happy to work with you.
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