March 2nd, 2013 by Thomas Phinney
The latest unlicensed-font-usage lawsuit was filed yesterday in New York City. Wisconsin-based Font Diner is suing Mixpanel, a mobile-app-analytics company in San Francisco, for font copyright infringement. The company alleges that Mixpanel used their typeface Coffee Service, designed by Stuart Sandler, embedding it in a Tumblr theme which they made available to all and sundry, which was not permitted by their license. The lawsuit asks for $1-million-plus for copyright infringement, and another $1-million-plus for breach of contract.
Yes, sticking a font you don’t own into an app or theme so that it can generate custom titles and headings on demand requires it be properly licensed. Then proceeding to give everyone and their dog access to the font makes it an even bigger problem, because you are giving away somebody else’s font software.
You can see the current version of the offending “Showroom” theme on Tumblr, using a similar but clearly different typeface. (The lawsuit acknowledges that Mixpanel has changed the theme to no longer use Coffee Service.)
However, in the court filing, once can find a screen grab of the earlier version using Coffee Service. (Sorry for degradation due to multiple translations here.)
From reading the lawsuit, the Tumblr theme uses the font converted into Cufón format, which is not allowed by the font license—even Font Diner’s web font license specifically disallows use of Cufón. Plus, even if that use was allowed, that would not make it okay to give away the converted font or allow any number of interested others to use it.
The lawyer in the Font Diner v Mixpanel case is the ubiquitous Frank Martinez, who does legal work for many type foundries, including litigation. You may know him from everybody suing NBC (there have been three distinct lawsuits against various branches of NBC since 2009), the Rick Santorum website lawsuit, and so forth.
As I happen to have been in New York this past week, I actually had dinner with Mr Martinez this past Tuesday, to get his perspective on many aspects of font lawsuits. Although we didn’t discuss this case in particular, it is interesting to see how it fits into the bigger picture.
The Mixpanel lawsuit claims that Mixpanel refuses to license the font for the use already made, or otherwise compensate Font Diner for the usage.
This is an important point. When talking font lawsuits, a lot of people seem to have the idea that individuals and companies making fonts troll the world looking for end user infringement and sue whenever they find it. But from my discussions over the years, both with those litigating parties and Mr Martinez, the overwhelming majority of cases involve the company or type designer approaching the offending company and asking them if they would please just pay for the legit license for the use they were already making. It is usually only complete refusal to make things legit that causes a lawsuit. I remember one high profile case of recent years in which the foundry told me that the lawsuit really just represented the latest in an ongoing series of infringements by the defendant over a decade, with constant and repeated overtures by the foundry for them to get legal, to no avail.
I am not, of course, claiming that every single font legal action undertaken has merit. I have seen a type foundry’s lawyer send a cease-and-desist letter to a company, in which they alleged unlicensed use of two fonts. Of the two fonts in question, one was in a bitmapped logo designed by an outside designer who was legitimately licensed, and the other font was not even being used—it was a similar typeface. They told the foundry’s lawyer as much, and never heard from him again.
Of course, if you are a company with more than a very small handful of designers, it might be hard for you to even know whether you do or do not have a font on one or more of your computers somewhere. That’s the kind of thing that our Universal Type Server software can be an immense help with. It can track which fonts are in use across a team or organization, control who has access to which of those fonts, and help track license information as well. Check it out.