kept bringing to my mind the name of the Aeolian Company which, of course, posed the threat of a music monopoly in 1908 through its concentration of recording rights. I believe I can furnish the rationale of my own position by simply addressing myself to the five areas highlighted in the notice of proposed rulemaking. 1. Whether type fonts, as "useful articles" can incorporate original design elements capable of being identified as "works of art" within the scope of the present copyright statute; The Copyright Office's attempt to construe the statutory term "works of art", especially as embodied in "useful articles" is found in Section 202.10 of its regulations. As correctly noted in the question, type fonts are "useful articles." They function as mechanical contrivances to produce legible printed words on a page. The question itself echoes subsection (c) of this regulation, which provides: "(c) If the sole intrinsic function of an article is its utility, the fact that the article is unique and attractively shaped will not qualify it as a work of art. However, if the shape of a utilitarian article incorporates features, such as artistic sculpture, carving, or pictorial representation, which can be identified separately and are capable of existing independently as a work of art, such features will be eligible for registration." It is this subsection which thus bravely attempts to draw the line between "works of art” deemed copyrightable by the Office and attractive designs which are not. The hallmark to protectability of shapes of utilitarian articles is the incorporation of "features such as artistic sculpture, carving or pictorial representation which can be identified separately and are capable of existing independently as a work of art." It is difficult to think of any situation which fits this description less than type fonts, where the design elements are inextricably connected to the utility of the font in producing effective type. More independence of appearance can be found in the shape of a piece of Jensen silverware, an Eames chair or a Vacheron watch. However, none of these presumably is a work of art within the scope of the present law. Neither the silverware, the chair nor the watch "appears to be within the historical and ordinary conception of the term art." See Rosenthal v. Stein, 205 F.2d 633, 635 (9th Cir. 1953). This definition from the Ninth Circuit Stein case (leading to Mazer v. Stein, 347 U.S. 201 (1954)) was, of course, applied to the Court of Appeals for the District of Columbia in holding that a phonograph record in the shape of a five pointed star is not a "work of art”. Bailie and Fiddler v. Fisher, 358 F.2d 425 (D.C. Cir. 1958). The shape of a letter of the alphabet is no more "art" than the five-pointed star. And although the notice in the Federal Register refers to recent judicial developments, I must say that I am not aware of any that have significantly altered this approach. Since I am not even exactly sure which cases are being referred to, I would appreciate learning them and having an opportunity to comment on them. 2. The distinctions, if any, between calligraphy, ornamental lettering, and typeface designs for copyright purposes; "Ornamental lettering" presumably involves pictorial or sculptural features which are separately identifiable and capable of independent existence as a work of art under the standards discussed in the response to (1) earlier. It is, therefore, in sharp contrast to ordinary typeface designs and may often be copyrightable. I understand, however, that it is impracticable to create and/or market a typeface design consisting of ornamental lettering and that, accordingly, the problem is not a pressing one. I'm not sure what is meant by the term "calligraphy" in the notice. "Calligraphy" connotes to me beautiful handwriting or penmanship. In the absence of hand-drawn, ornamental lettering, I should think even a beautifully shaped handwriting is not copyrightable but I would like to give this matter further thought if it is deemed of continued importance. 3. Whether a typeface design can, by its nature, incorporate the degree of originality and creativity necessary to support a copyright; A negative answer to this question to some extent flows from and overlaps the negative answer to (1). "Originality" involved in producing an effective al phabet-or even simply an attractive one calls to mind the effort to produce an effective fleurs-de-lis design for a label by the Forstmann Woolen Co. some years ago. As the Register knows, this effort was found to lack originality (Forstmann Woolen Co. v. J. W. Mays, Inc., 89 F. Supp. 964 (E.D.N.Y. 1950)). It is the nature and function of typeface designs, highlighted by Mr. Solo, as well as the experience of the Copyright Office, that justifies the conclusion that "mere variations of typographic ornamentation, lettering or coloring" are not subject to copyright. 37 C.F.R. § 202.1. This language merely exemplifies the § 202.10 concepts. When I say the function of a typeface would seem to preclude copyrightable creativity, I am not suggesting that variations are impossible or attempting to demean the efforts of people like my respected neighbor from Croton-on-Hudson, N.Y., Ed Rondthaler. But once again it is difficult to think of an article whose appearance is more affected-if not dictated by its intrinsic function than a typeface design. The elusive concept here is that the function itself is a visual one. But this doesn't make it an aesthetic, nonutilitarian function in the sense of the function of a painting. The function of type faces is similar to that performed by the finish on paper, the color of a traffic signal, the reflector on a road sign or lighting of a sculpture display, all of which must be carefully designed but without copyrightable creativity. Indeed, once again the very conventions which must be observed to make letters recognizable dictate appearance to a remarkable degree. We are thus reminded not only of the temperature chart cases, but the printed circuit boards which I gather are still presented to the Copyright Office each year. These attractive mazes look the way they do because of the demands made by the circuitry involved. Typefaces look the way they do because they are designed to produce recognizable, legible effective alphabets. 4. Whether, for purposes of copyright registration, workable standards can be established for distinguishing "new" designs based on previously-existing typefaces from mere copies or minor variants of earlier designs; I do not think workable standards can be established. But more significant is the fact that this question needs to be asked. The essence of "copyright registration" as we know it precludes "distinguishing" works submitted for registration from previous works. Thus, the question reflects the dilemma that would confront the Office if it modified its present policy and registered claims in typeface designs. The Office would either have to: (1) Modify its entire approach and engage in the kind of judgmental activity many people think is beyond its statutory authority or (2) register claims in many designs which the Office knows essentially duplicate previously existing designs. 2 5. Assuming the potential copyrightability of certain typeface designs, the practical means of complying with the formal requirements of the copyright law as to notice deposit and registration. Whether practical means may be devised for complying with notice require ments depends on the school of thought defining these requirements. See Doyle et al. "Notice of Copyright" 1 Studies on Copyright 237 (Arthur Fisher Memorial edition 1963). Under the more liberal approach, a single notice on an entire font, as it is sold, would be sufficient even if the notice never appears on the printed page. The dangers of innocent infringement have already been covered by other speakers. A stricter approach would perhaps require a notice on each character each time it is produced. The fact that this would be impracticable does not necessarily mean that this stricter approach would not be followed; it may merely illustrate that the copyright statute was never intended to cover typeface designs. Deposit and registration may raise other problems centering about whether each font of a particular typeface is a separate "work". I gather, for example, 2 This raises sub-dilemmas. e.g., (a) modification of the Office's entire procedure with respect to all works of art or even all classes of works or (b) inelegant discrimination in the case of typeface designs. 3 Even greater dangers are created by the fact that "works of art" may be registered In unpublished form. that different size type sometimes requires variant forms of a design for the letters to perform their function. Thus, for each design introduced there may be a dozen different "works" which would arguably be involved, with deposits and applications for registration containing appropriate "new matter" information for each. These problems are, of course, not insurmountable. Again, however, they may well support the long-held conclusion of the Office that the statute was not intended to cover typeface designs. I think the foregoing indicates that there is no sound reason to change Office practice and grant registration to typeface designs, leaving uncovered many other areas of creative design where the problems are less formidable. I think typeface designers should join the designers of other products in supporting the design bill. This is not to say that all typeface designs would be covered by such a bill; nor would protection under that bill be anywhere near as broad as under copyright. But the existence and progress of that bill is merely further confirmation of my view that copyright under the present statute is not the place for protection of typeface designs. Mr. KASTENMEIER. Next the Chair would like to call three witnesses favoring typeface protection: Mr. Joseph Gastel, a copyright attorney, George Abrams, operator of Alphabets, Inc., a small typeface concern, and Mr. Michael Parker, official of a larger operation, Mergenthaler Corp. Gentlemen, would you come forward, please. Mr. Gastel, Mr. Abrams, and Mr. Parker, each of you has 5 minutes. Whichever of you would like to proceed. Mr. GASTEL. I would, Mr. Chairman. My name is Joseph Gastel. Mr. KASTENMEIER. Mr. Gastel, you may proceed, sir. Each of you has prepared statements which you have made available to the committee. Without objection, they will be received and made a part of the record, and should you care to vary or elucidate upon the statements, you may do so. TESTIMONY OF JOSEPH GASTEL, COPYRIGHT ATTORNEY, ACCOMPANIED BY GEORGE ABRAMS, OPERATOR OF ALPHABETS, INC.; MICHAEL PARKER, OFFICIAL OF MERGENTHALER CORP.; AND HENRY LEEDS, COUNSEL FOR MERGENTHALER CORP. Mr. KASTENMEIER. Incidentally, they are rather short statements. Perhaps you would prefer to read them verbatim. Mr. GASTEL. Yes. This is my preference. Mr. Chairman and members of the committee, my name is Joseph Gastel. I am an attorney and specialize in patent, trademark and copyright law. I represent International Typeface Corp., a developer and marketer of typefaces. My purpose is to present a few thoughts as to why there should be copyright protection for original typeface designs. Broadly, typefaces are the shapes and configurations of letterforms which are assembled or set to produce printed material of all kinds, including advertising copy and text material. In the past 15 years the typesetting industry has experienced a technological revolution. Mr. WIGGINS. Mr. Chairman, I know it is impolite as well as almost out of order to interrupt a witness in his statement, but I would-it would help me so much if I could have a clearer understanding of what typeface is before you get into it. Mr. GASTEL. Yes. Mr. WIGGINS. As you explained it, sir, I understand it to be just the letter design and not the process. Mr. GASTEL. That is correct. Mr. WIGGINS. Just what it appears, like this is-this is a typeface. Mr. GASTEL. Yes. The individual members are typefaces and altogether it is typeset material. Mr. WIGGINS. Your testimony is going to the individual shape of the letter itself. Mr. GASTEL. That is right. Individual shape of alphabets, entire alphabets. Mr. WIGGINS. I understand. OK. That helps me, Mr. Chairman. Mr. GASTEL. Now, actually here are what I will refer to as typeface fonts which I used in phototypesetting which is a card that is inserted into a machine showing a particular alphabet design. Mr. KASTEN MEIER. Perhaps it being the case that the panel is not necessarily familiar with the question, if I may, too, interrupt Mr. Gastel briefly to read a statement for the record from Dorothy Schrader, General Counsel of the Copyright Office. It is quite short. It may help. It is accompanied by a letter and it refers to typeface design. [The material in question is as follows:] Mr. HERB FUCHS, Counsel, Committee on the Judiciary, COPYRIGHT OFFICE, THE LIBRARY OF CONGRESS, U.S. House of Representatives, Washington, D.C. DEAR MR. FUCHS: In accordance with your request, I have prepared a brief summary of the status of the typeface issue. I will be gone from the Office until June 3. If you need additional information, please contact either Mrs. Wilma Davis or Mrs. Harriet Oler of my staff. Sincerely yours, DOROTHY M. SCHRADER, General Counsel, TYPEFACE DESIGNS The Regulations of the Copyright Office now in force do not permit us to register claims to copyright in "mere variations of typographic ornamentation [or] lettering..." [37 C.F.R. 202.1(a)], and this prohibition has been interpreted to include typeface designs. Because of technological developments, including widespread introduction of photomechanical processes for reproducing the printed word, typeface design "piracy" has become a serious economic problem for those who originate typeface design-designers, manufacturers, and franchisers of designs. Those affected by "piracy" urge amendment of the regulations of the Copyright Office to permit registration of typeface designs. The Copyright Office held a public hearing on November 6, 1974 to receive public comment from proponents and opponents of a change in the regulation. The enclosed announcements, ML-111 and ML-113, gave some background and requested comment on five specific points. Each side made a strong case at the hearing. Proponents demonstrated the significance of artistry in designing typefaces and established differences between the typefaces of different designers. Opponents, however, made a major issue of the scope of the Register's regulatory authority and argued that an administrative change could not make the necessary provisions for all of the ramifications of a change. The Copyright Office received written comment on the issue through January 15, 1975. We are in the process of evaluating the testimony given at the hearing and the written comments. No decision has been made one way or the other by the Register.. Title II of H.R. 2223 is the Design Protection Act. It is possible that adequate protection for typeface designs could be legislated by enactment of this bill. The Register intends to write Mr. Kastenmeier about the relationship between the typeface design issue and title II and urge hearings on this issue. [Announcement from the Copyright Office, Library of Congress, Washington, D.C.] REGISTRATION OF ORIGINAL TYPEFACE DESIGNS The following excerpt is taken from Volume 39, Number 176 of the Federal Register for Tuesday, September 10, 1974: LIBRARY OF CONGRESS Copyright Office [37 CFR Part 202] MATERIAL NOT SUBJECT TO COPYRIGHT The Copyright Office is considering amending § 202.1 (a) of the Copyright Office Regulations to permit copyright registration for original typeface designs. The present Regulations prohibit registration for "mere variations of typographic ornamentation [or] lettering," and this prohibition is interpreted to include designs for type fonts within its scope. This advance notice of proposed rulemaking is being issued to facilitate the widest possible public expression of views on the legal and policy questions implicit in the possible change in registration practices. Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire to the Copyright Office, Office of the General Counsel, Washington, D.C. 20559. Each person submitting a comment should include his name and address, and give reasons for his recommendations. A public hearing will be held on November 6, 1974, from 10 a.m. to 4 p.m. in room 1112, Building 2, Crystal Mall, Arlington, Virginia. All communications received on or before November 15, 1974, will be considered by the Register of Copyrights and the Librarian of Congress before taking action on the proposed rule. If it is determined to be in the public interest to proceed further after consideration of comments received in response to this notice, a notice of proposed rulemaking will be issued. The Copyright Office registers claims to copyright in accordance with Title 17 U.S.C. in "writings of authors," that is, original works of authorship in the form of literary, musical, dramatic, pictorial, and sculptural expression. Typeface designs have not previously been accepted for registration. In view of developments in the industry, judicial developments, and conclusion of an international convention in Vienna in 1973 aimed at an international system of protection for typeface designs under copyright or other legal theories, it is proposed that the validity of the present prohibition on registration for typeface designs be reevaluated. Comments are specifically requested in the following areas: (1) Whether typefonts as "useful articles," can incorporate original design elements capable of being identified as "works of art" within the scope of the present copyright statute; (2) The distinctions, if any, between calligraphy, ornamental lettering, and typeface designs for copyright purposes; (3) Whether a typeface design can, by its nature, incorporate the degree of originality and creativity necessary to support a copyright; (4) Whether, for purposes of copyright registration, workable standards can be established for distinguishing "new" designs based on previously-existing typefaces from mere copies or minor variants of earlier designs; (5) Assuming the potential copyrightability of certain typeface designs, the practical means of complying with the formal requirements of the copyright law as to notice, deposit, and registration. This advance notice of proposed rulemaking is issued under the authority of section 207 of the Copyright Code, Title 17 U.S.C. Dated: August 29, 1974. BARBARA RINGER, Register of Copyrights. |