By Helena Guye, University of Missouri School of Law
Before we begin, it is important to set out some definitions. While it is fairly common for people to use the terms “font” and “typeface” interchangeably, distinctions should be noted: A font is the underlying computer program that controls how a collection of characters and numbers (sometimes called glyphs) is displayed. A typeface describes the common design shared within a collection of characters. Helvetica, Times New Roman, and Garamond are all examples of widelyused typefaces. Some have distinguished the two with the simple axiom “a font is what you use, a typeface is what you see.”
The way in which the law confronts the issue of fonts is not exactly clear-cut. Typefaces and fonts receive different levels of protection within the context of intellectual property: copyright, patent and trademark law.
Under copyright law, only the computer program that underlies the typeface—the font—is protectible. The design of the characters themselves is not. This is because copyright only protects “original works of authorship” which includes computer software, and courts have deemed typefaces to be mere industrial designs in which the design cannot exist independently and separately as a work of art.
Persons seeking to protect their typefaces can do so by obtaining a design patent. Unlike a utility patent, which provides protection for any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof, a design patent allows a person to protect the ornamental design for an article of manufacture. Fortunately, typeface falls under such a definition, though minor differences might avoid successful infringement claims.
Trademark law does not extend very far in this context—the only thing that may be protected under trademark is the name of the font itself, as a source identifier. Therefore, font designers may need to be careful tossing around terms such as “Helvetica” or “Calibri” without infringing on any owners’ trademark rights. Monotype Imaging Inc. has registered “Helvetica” for software for printing type fonts, and Microsoft has registered “Calibri”for computer software for use in displaying and printing digital typeface designs, typographical ornaments and character fonts.
Practice Pointer in Art and Design
When downloading and using a font, it is important to keep in mind that many (particularly newer fonts) may not be “free” to use. If you’ve downloaded a font without a license it is likely that the font may only be safe for personal use or, in the alternative, the font may have been pirated and uploaded illegally. When downloading fonts for commercial use, it is critical to be aware of the permissive uses detailed in the license. It is usually prudent to start with reputable font “foundries” — online distributors of fonts — such as Grilli Type, and to carefully review the associated licensing agreement.