Typefaces – the actual shapes of a group of letters – and fonts – the software used to create a particular typeface – are both protectable under U.S. intellectual property laws.
Design Patents in Typefaces
The Manual of Patent Examining Procedure (the “MPEP”) is remarkably terse regarding typefaces (called Type Fonts just to add to the confusion). MPEP 1504.01(a)(III) reads:
III. TREATMENT OF TYPE FONTS
Traditionally, type fonts have been generated by solid blocks from which each letter or symbol was produced. Consequently, the USPTO has historically granted design patents drawn to type fonts. USPTO personnel should not reject claims for type fonts under 35 U.S.C. 171 for failure to comply with the “article of manufacture” requirement on the basis that more modern methods of typesetting, including computer-generation, do not require solid printing blocks.
Other than general requirements for the type of fonts to be used for patent application papers conforming to the USPTO’s format requirements, there are no further mentions of typefaces or type fonts. This is in a general section related to design patent examination. There is not even a suggestion of an appropriate form of drawings in support of a typeface design patent registration. Nonetheless, they are capable of protection with design patents. Several examples may be seen here, here, and here. This section of the MPEP is basically a special dispensation that the typefaces need not actually be “an article of manufacture” (e.g. physical) because they are still used in computerized form to create the associated form of text.
The cases on these types of patent all appear to be quite old. The most recent I was able to find was from 1931, but that may have been the result of the search terms used. Here is one example from 1917, long pre-dating the Federal Circuit resolution of patent issues. In the case, for actual wood block printers type fonts, the First Circuit held that there was nothing out of the ordinary about the font, despite the issuance of the associated patent. The case was dismissed in equity, effectively on motion to dismiss in answer to the complaint.
Copyright Protection for Fonts
The Copyright Office does not protect typefaces with copyright protection. The general idea is that the typefaces do not demonstrate sufficient creativity to merit protection under copyright. In Eltra Corp. v. Ringer, 579 F.3d 294 (4th Cir. 1978) (available here), the plaintiff sought writ of mandamus to force the Copyright Office to register a copyright in a typeface. The Fourth Circuit found that the typeface was not a work of art, and was essentially an industrial design – read: has utility – and that the utilitarian nature of the article could not be separated from its design. The decisions of the Register of Copyrights and the lower court were affirmed. This has since been set forth in Circular 33.
However, the Copyright Office does provide for registration of “fonts” which it delineates as the software used by a computer to create a given typeface. The ordinary requirements under Copyright Office Circular 61 for software apply. The general policy regarding typefaces and fonts is set forth in Copyright Office Compendium 906.4. The most relevant sections indicating:
As a general rule, typeface, typefont, lettering, calligraphy, and typographic ornamentation are not registrable. 37 C.F.R. § 202.1(a), (e). These elements are mere variations of uncopyrightable letters or words, which in turn are the building blocks of expression. See id. The Office typically refuses claims based on individual alphabetic or numbering characters, sets or fonts of related characters, fanciful lettering and calligraphy, or other forms of typeface. This is true regardless of how novel and creative the shape and form of the typeface characters may be.
The Office may register a computer program that creates or uses certain typeface or typefont designs, but the registration covers only the source code that generates these designs, not the typeface, typefont, lettering, or calligraphy itself. For a general discussion of computer programs that generate typeface designs, see Chapter 700, Section 723.
The associated section 723 classifies the font as a computer program and indicates that the code itself may be copyrightable, but not the typeface itself.
If the foregoing has sparked your strong interest, there is a 2014 law review article by then-student Emily N. Evans that delves deeply into the current protection available and proposes some suggestions regarding typefaces and fonts.
On Monday, April 18, 2022, SoCal IP Law Group LLP partner Jonathan Pearce will lead a discussion of the issues presented above.