January 4th, 2017 by Jim Kidwell
@TerriMarsh11 Weird…Had no idea of this man’s Existence. Is it possible to copy-write Type face⁉️
— Cher (@cher) December 22, 2016
Type designer Moshik Nadev created his work Paris Logo back in 2011 and claims that the design used on her album cover is a rip-off of his. They do seem to be quite similar, it’s pretty plain to see.
Now, does this warrant a $5 million dollar lawsuit? That’s an interesting question.
While I’m not a lawyer, from what I understand, typefaces themselves can’t be copyrighted, but the software used to deliver then can.
So, did the person who drew Cher’s logo draw everything for themselves? Or did they take the “shortcut” and digitally copy Nadev’s work?
Most of us know that you can’t copy, share or rename a font file and sell it as your own. Maybe this type of use falls into a gray area. It depends upon how the final artwork was created.
Of course, I would not recommend that you pirate, steal or illegally download any creative work that you don’t have rights to use. As creative professionals, we do ourselves a disservice if we choose to ignore the right that others have to fair compensation for their creative work.
If you need help keeping your team on the legal straight and narrow when it comes to fonts, take a moment to check out Universal Type Server. It’s built from the ground up to help you manage font distribution and keep your team’s legal worries at bay.
February 14th, 2014 by Jim Kidwell
Are you or your company at risk because of your font usage?
We recently surveyed creative professionals to see how they were using fonts, and found that many could be putting themselves and their company at risk.
In a recent webcast, I went over the survey results in detail. If you’ve got a few minutes, sit down to with a cup of coffee and learn more about how you can make your team’s workflow a safer place.
During the actual webcast I did an additional survey asking if people thought that their font use could be putting their company at risk. At the start of the webcast 55% said that they didn’t think that the were at risk from their font use (with 45% saying that they were are risk).
After the webcast, that number flipped on it’s head with 62% feeling that they were at risk and 35% feeling OK and not at risk.
See how you feel at the end and let me know in the comments.
August 13th, 2013 by Jim Kidwell
We were recently awarded three patents that cover font management and web font technologies. These new patents add to the Extensis portfolio of more than 20 patents gained over 20 years, spanning both font management and digital asset management technologies.
The new patents include:
- Patent No. 8,488,886 for “QuickMatch”, a powerful font comparison technology which can tell designers almost instantaneously which fonts in their collection contain similar glyph traits. QuickMatch is featured in Extensis’ recently released professional-grade font manager, Suitcase Fusion 5.
- Patent No. 8,413,051 for “Contextually Previewing Fonts,” allows designers to preview fonts from their collection side-by-side using any text, as well as tear-off font previews that hover over all other applications in the Operating System.
- Patent No. 8,438,648 for “Preventing Unauthorized Font Linking,” a font security and watermarking technology found in the WebINK web font service that prevents piracy. This protects both the work of the designer and Extensis’ foundry partners.
“The number one mission of Extensis is to develop breakthrough technology that fosters the creative process, and enables users to be confident that their creative choices are protected,” said Chad Slater, Director of Extensis Engineering. “The issuance of these patents reinforces this commitment.”
This adds to Extensis’ library of font management patents already awarded, which includes: simultaneous font previews, font activation, font corruption detection, and Font Sense™ for unique font identification.
Extensis resident font expert, Thomas Phinney, gave a great talk at SXSW 2013 last year.
Thomas’s presentation covered activities outside of his typical workday, including some fun detective work to identify forgeries and other malfeasance identified through the fonts and typefaces included in various documents.
Former news anchor Dan Rather and former US President George Bush are featured prominently.
Check it out and let us know what you think.
Thomas continues to do font detective work. Have a case for him to investigate? Shoot us a note.
January 21st, 2013 by Jim Kidwell
Are you less than certain about your font licensing strategy?
Like any other piece of software, fonts are governed by licenses. Perfecting a font licensing strategy has become a top priority for most organizations that rely upon fonts in their creative workflow.
We’ve put together a Font Management Symposium in New York City for Feb 1, 2013 that can help you get on your way toward a font compliance strategy.
Learn how font licenses are structured and how they can affect your organization from the premier legal authority on fonts and intellectual property, Frank Martinez Esq. of the Martinez Group.
- Free One Day Symposium – The Evolution of Font Management
- Friday, February 1, 2013
- 9:30 a.m. – 3:00 p.m. (includes hosted lunch)
- Fashion Institute of Technology – New York City
- Limited availability. Attendance and lunch are free.
The symposium also features presentations, panel discussions and direct Q&A with Publicis, Condé Nast, mcgarrybowen, Time Inc. and more. We hope that you’ll be able to join us.
January 11th, 2013 by Jim Kidwell
The Hollywood Reporter is breaking the news today that NBCUniversal has settled the $3.5 Million lawsuit brought by Brand Design Co (House Industries) for the alleged use of the font Chalet outside its license restrictions.
While the terms of the settlement weren’t released today, the amount in the initial suit is enough to make any organization stand up and take notice.
This case, as well as previous font licensing cases, brings to light the need for effective monitoring and distribution of fonts in creative environments.
Fonts are licensed just like software, and controlled by an End User License Agreement (EULA). When you purchase fonts for use in your organization, it’s very important that you understand your rights and restrictions outlined in that EULA.
Most type foundries create very reasonable terms in their license agreements, and are more than happy to help you understand what’s considered an appropriate use. If you’re unsure, always ask before using.
An area that many people get themselves into hot water around is the appropriate licensing of fonts for use as web fonts. Many foundries don’t allow direct use of their fonts on the web, unless it’s done through a web font service, such as WebINK and the like.
To track licensing issues, while enabling creative teams to be productive, most teams have moved to an environment that includes a font server. This type of setup can distribute fonts to the appropriate people, track font licensing, and help you determine wether you are in compliance.
July 20th, 2012 by Jim Kidwell
This Wednesday, House Industries (Brand Design Co.) filed a $3.5 million claim against NBC Universal for alleged misuse of their font Chalet on the website www.nbcuni.com.
The key to this lawsuit is the licensing. A division of NBC Universal apparently purchased a number of copies for desktop use. Where the complaint lies is that allegedly NBC Universal converted the font for web use via an online tool, which is outside the scope of the font license.
Using fonts on websites is something that many creative groups want to do. It’s at the forefront of web design, and has many benefits for content management, SEO, readability and for overall design aesthetics. Unfortunately most fonts aren’t by default licensed for use on the web. This is because when fonts are used in web sites, they actually reside on the web server, and the font software is physically downloaded to each user when they view the page.
This means that the infringement isn’t just for converting the font to a different format. It’s also for the number of people who visited the offending site and received a copy of the font to display the page – estimated at 20,000 visitors. That’s where the $3.5 million dollar claim comes from – the original price of the font multiplied by the number of downloads.
So, how do you keep yourself safe from these types of lawsuits.
Firstly, read all of your font licenses when you purchase them. If you don’t understand something, clarify with the type foundry. Many of these shops are fairly small (sometimes even just one or two people) and they will very likely be happy to help you understand what you’re getting.
Second, for font use on the web, use a font service such as WebINK or be sure when purchasing fonts to explicitly include web licensing. If the font that you’re purchasing doesn’t support web usage, there’s likely an alternate from a reputable web font service that will meet the need. There are benefits to using a web font service beyond merely font selection, and you can read more on www.webink.com.
Finally, manage all of your fonts and licenses using a server-based font manager like Universal Type Server. If you’ve got a creative team, it’s important to understand which fonts you have licensed, and what those font licenses are for. With server-based font managers, you can store all of your fonts and licenses centrally so users can have access to your collection.
As always, if you have any questions, I’m happy to answer what I can in the comments below, or shoot me an email using the contact form.
March 20th, 2012 by Jim Kidwell
The issues surrounding copyright, intellectual property and design can confound even the most intrepid designer. Fortunately, there are those who specialize in the field.
One of those experts is Frank Martinez, the legal mind behind the intellectual property law firm The Martinez Group PLLC. Mr. Martinez’s work focuses on the legal issues surrounding the field of design, and this has often taken him into the legal and intellectual property issues surrounding the development, sale and use of fonts and typography.
Now considered one of the pre-eminent experts in the field, Mr. Martinez took a few minutes to answer a few questions about his design roots, font licensing and the future of design law.
JK: I understand that you have a background in design. What drew you to design as a career, and what was your focus?
FM: I studied art and design in high school and I have a BFA from Pratt Institute were I was a printmaking major. After several years printing lithographs and etchings for artists, we turned to commercial printing. Being suckers for anything technical, we soon installed an IBM PC, a laser printer and a year later, our first Macintosh. We ended up being the de facto service bureau for our Dumbo loft building in 1998. Shortly thereafter, I started working with fonts by agreeing to typeset a 150-page book on the Macintosh for one of my art schoolteachers. Once I started working and experimenting with the fonts, I was hooked. On Black Monday we put the print shop to rest and I went to work in design as a production manager where I was responsible for purchasing font licenses. In short order I was teaching myself Postscript and setting up kerning tables for fonts that were used in designing pharmaceutical labels.
JK: How did you make the transition from design to the legal world?
FM: I knew from the first day of law school that I wanted to work in intellectual property. When I graduated from law school I spent 2 years at the U.S. Patent and Trademark Office as a Design Patent Examiner. Within 6 months, I managed to become the Examiner responsible for issuing design patents for font designs. Within a year, I started contributing articles to ID and Print Magazines about issues relating to design and the law. By and large, most of my articles were about fonts, protecting fonts and protecting creativity. Since I went into private practice, it’s been all fonts, all the time.
I still keep close contact with the design world. I have been teaching Intellectual Property Law in the MFA Design Program and the School of Visual Arts in New York for the past 13 years. Each new class is a lesson in how the Internet is changing the practice of design. When I first started teaching, every student had a dot com equity for services deal offered to them and they wanted me to teach them how to go public. This year, I had to speak slowly enough for note taking on iPads and the students wanted to discussed how to self-commercialize their senior thesis – the world changes.
JK: What would you say makes the legal issues surrounding the design community unique?
FM: In a nutshell, there are four primary issues. First, in the United States art and design has always been the handmaiden of commerce. It is hard to get business owners to understand that good design is art and to quote Milton Glaser, Art is Work. It is the erroneous perception in the business community that making art is an escape from a responsible adulthood that underpins the general lack of appreciation for the work of designers and an understanding of the intrinsic value of good design.
Second, as a general matter, designers and artists are not particularly astute business owners. Because there is no exposure to basic business and legal studies as a part of professional design education, designers are, for the most part, unable to authoritatively provide justification for the difficulty of the creative process and value of their work. In addition, designers do not have the tools to understand the legal framework that is used to protect their work.
Third, the mechanisms for protecting creative work are fragmented and unnecessarily confusing because different creative endeavors are protectable by different bodies of law. Artworks that have any usefulness are considered “utilitarian” and cannot be protected by copyright law. If you create a set of sculptural lampshades, you cannot copyright them. But non-illuminated sculptures bearing the identical form could be copyrighted. If you design a website, you cannot protect it by copyright since the Copyright Office views the attempt to copyright “graphic design” as an attempt to claim ownership of points or coordinates on a two dimensional grid. However, a claim to a copyright of the compilation of those images and text comprising the very same website can be copyrighted. Type font designs are expressly denied protection under copyright law in an effort to make sure that no one can claim “ownership to the alphabet.” However, the software creating the font can be copyrighted. Irrespective of their creative and artistic content, logos are considered trademarks and can only be protected by trademark registration.
Finally, it can be expensive to protect design works. Enforcement of rights by litigation or providing a plausible threat of a lawsuit to protect design is daunting, complex and expensive. Most corporate infringers can fund stiff and expensive-to-counter defenses. If a designer doesn’t protect their work product by solid contracts and, where appropriate, copyright filings, it will be hard to find an attorney willing to represent them. Copyright law provides incentives to register, among them the ability to claim enhanced damages as well a right to seek costs and attorney’s fees from an infringer.
JK: You work with quite a few typeface designers and type foundries. What are the main issues that you see surrounding typeface & font intellectual property?
As I noted above, the design of a type font is not copyrightable. A font design is protectable by a design patent, but protection under design patent law is merely 14 years. In contrast, the life of a copyright is the life of the author plus 70 years or in the case of font owned by a foundry or company, 95 years from the date of publication of the work. We work to ensure that our clients secure the longest possible term of protection, which is why we copyright the software associated with a type font. Furthermore, preparing and filing a design patent almost always requires the assistance of an attorney and can be quite expensive while an online copyright application is merely $35.
JK: What do you view as emerging legal issues surrounding fonts & typography?
FM: The largest issue is the web and the historical paradigm of licensing fonts for desktop use, which was, in turn, based upon selling 100 lbs. of lead type to a job printer. The web is a rich medium and font licensing and font valuation has not kept pace with the flowering of the web as a content medium. I recently launched DigitaLingo.com as a non-legal resource for foundries. DigitaLingo employs proprietary algorithms to value font licenses in OEM type licensing arrangements. The goal of DigitgaLingo is to match the actual value of a font license with the value a font creates when used in the rich mediums available on the web and across the plethora of devices that use the Internet and fonts.
JK: What are the legal issues that you see with font usage on the Internet?
FM: The web has always been a culture of sharing. An entire generation has grown up using the Internet and believing that anything on the Internet is free to use, free to share and free to reuse or repurpose. The recent lawsuit involving the artist Richard Prince underscores the issue of Fair Use and appropriation and when does using preexisting copyrightable work become copyright infringement. This issue is not new and the doctrine of Fair Use was created specifically to provide a safe harbor for creative works where the cultural benefit exceeds the potential harm to the copyright owner. The issue of Fair Use is being tested every day in new and quite imaginative ways.
JK: Staying legal is a job for both those who design typefaces and those who use them. What can you recommend as best practices for each group?
FM: Keeping it simple, conduct an audit; know what fonts you have and make sure that you have a license for the number of users and the methods of use. A good place to start to understand whether you are properly licensed is to read the EULA and if you can’t find one, go online to the foundry website. If you are not sure whether your use and/or usage are licensed, call the foundry. Trust me, they will be very, very happy to speak with you and will probably extend a discount, just because you called.
JK: Many print designers are moving into the world of web design. Do you have any tips for designers making the jump?
FM: Make sure you are properly licensed. Most uses of fonts in Flash type animation require a separate license and the use of fonts as webfonts will almost always require a special license. Don’t create liability for yourself and your clients; 15 minutes of research can make a significant difference to your career.
JK: Are there any differences in how the law considers font licensing and software licensing, or are they treated identically?
FM: Fonts are software but they need to be treated according the value they create. It is the cultural and historical impediments to understanding the value created by fonts and typography that needs to be understood and changed to meet the usage methods.
JK: Do you have any tips for those who are reviewing font EULAs to determine appropriate use?
FM: Most current EULA are pretty explicit as to what is allowed and prohibited. If the EULA you are reviewing is not, seeking to exploit perceived loopholes in the EULA will eventually cause a dispute. Again, if you are not sure, call the foundry.
JK: Can you recommend when it’s a good idea to consider legal counsel for font issues?
FM: If you are a foundry; as soon as reasonably possible. If you are a designer or the client of a designer and you believe that there may be a font use or license issue, sooner than later. Font designers will eventually find unlicensed or improperly licensed uses. If you are a designer and you need to purchase a font license, make sure that your use and your client’s uses are adequately licensed. If your client will need the font, make sure your client is also licensed.
JK: Fonts can be easily copied from one machine to another, and even easily downloaded from the Internet. This has lead many to treat fonts as “free.” What would you say to help convince people to better monitor their use of fonts?
FM: Font foundries are usually small businesses. It can take thousands of hours to design and implement a good font family. Using unlicensed fonts is no different from stealing from the corner mom and pop store. Proper licensing will result in a richer selection of fonts and better fonts because foundries will be incentivized to create products that the market will license. Finally, if you are designer, be self-interested, it is a lot less expensive to purchase a license than to lose a client and fight a lawsuit.
December 1st, 2011 by Jim Kidwell
While you may not immediately think of them as such, fonts are software. Licensed just like any other piece of software on your computer, you need to be sure that you’ve purchased the appropriate licenses for the fonts and types of uses that you expect.
Over the past few years a number of organizations have run into problems by not appropriately licensing their font collection. Here are just a few of the public lawsuits.
Through no feat of magic, NBC Universal’s Wizarding World of Harry Potter was sued for the misuse of fonts when creating gift shop items. The lawsuit alleged that no one involved in the production of certain products purchased licenses for the fonts in use.
While not the best coverage for a presidential campaign, Rick Santorum’s website was allegedly caught using a font inappropriately. The blame didn’t fall on the candidate himself, but on that of his design agency. Proving that no matter how small your design group may be, you can come on the radar. In situations like these, your client definitely wouldn’t be happy with the attention, and I’m sure that event the largest agency wouldn’t like to have a $2 million lawsuit bearing down on them.
Back in October 2009, the Font Bureau also sued NBC for the misuse and disregard of font licenses for typefaces that were used on their television programs.
Keeping your team safe
It is possible to do the right thing and keep your team safe from lawsuits. The best thing that you can do is fully understand how many licenses you need, and then purchase the appropriate number of licenses. A font server such as Universal Type Server can help you on both counts.
With a server-based font manager, you can understand which users need fonts in your collection, automatically distribute purchased fonts to users, and then assess your changing needs through periodic reporting.
If you’d like to to talk through your font compliance strategy further, please contact one of our representatives today.