as to refute some of the arguments and inaccuracies made by the opponents of protection for original typeface designs.

On page 6 of our filed statement of 17 July 1975, we stated that, "In seeking protection for original typeface designs, Mergenthaler does not wish to inhibit in any way the use of the protected typeface by typesetters, publishers, reprint houses or authors." This statement is correct to the extent that Mergenthaler disclaims any rights in composed pages of text, irrespective of whether the means for making the pages were authorized or unauthorized. However, it is inaccurate to the extent that we seek protection from the unauthorized reproduction of original typeface designs for the purpose of providing a means to compose a page of text. Such protection would inhibit the typesetter's use of unauthorized means for composing text in a protected typeface design. Moreover, "art directors" were inadvertently omitted from the list of persons who should not be inhibited in any way if protection is granted for original typeface designs.

For the reasons expressed above, the aforementioned quotation from page 6 of our 17 July 1975 statement should be amended to read :

"In seeking protection for original typeface designs, Mergenthaler does not wish to inhibit in any way the use of the protected typeface by publishers, reprint houses, authors or art directors."

As stated at the hearings, Mergenthaler has no objection to compulsory licensing of protected typeface designs at a reasonable fee. Additionally, it does not seek unfettered protection for original typeface designs. It seeks only to protect original typeface designs:

1. from unauthorized use to make means for composing text, and

2. from such unauthorized means being used to compose a page of text. We make no claim to the composed page, and would have no objection to expressly stating that text composed from an unauthorized means is not an infringement of the protected typeface design. These limitations and disclaimers provide a complete answer to the objections of the International Typographic Composition Association, The Advertising Typographers' Association, and Mr. Wasserstrom, Counsel for Hearst Corporation.

Referring to the written statement submitted by the International Typographic Composition Association (ITCA) and the Advertising Typographers' Association (ATA), the following quotations are particularly significant:

"*** We are in favor of some form of protection for type designers that provides economic incentive to create and design good, unique, new and original typefaces, which are readily available to all at a competitive price." Page 2. "We would prefer to see universal licensing of new designs so that independent manufacturers of type fonts could flourish. There is no reason economic or social why manufacturers of typesetting equipment should be the only source of type fonts for that equipment. Protection for the designer does not require insulation of the manufacturer from competition in a free market. In no way do we condone piracy and when we speak of independent font manufacturers it is with the understanding that they pay compensation to the designer." Page 5.

"1. We would like to see universal licensing of typefaces to all legitimate manufacturers. We consider it healthy to have typefaces obtainable from more than one source, provided there is good quality control. Because typeface designs are unique, they must be meticulously and accurately reproduced. Their extension to matrices or grids (fonts) for equipment other than that for which they were originally designed is to be carefully controlled by the original designer or design team. Only with this kind of quality control, which insures compatibility, can designers specify type with the assurance that their finished designs will reflect their graphic plans.' and '4. AIGA wants to be certain that the cost of type composition remains reasonable-that a royalty and licensing system will not inflate rates unfairly; it also wants to be sure that any royalty or license charge will be collected only once, when the font or grid is sold . . .'

"In addition to the foregoing, the AIGA statement calls for specific legislation to prevent a copyright proprietor from gaining an injunction against an author, printer or publisher who used an unauthorized copy for a protected (type) face. This relates to the concern of the Hearst Corporation, as expressed by Mr. Wasserstrom, and of many other publishers." Page 11.

It is evident from the foregoing quotations that ITCA and ATA do not object to protecting original typeface designs. In fact, they urge it, subject to appropriate limitations with which Mergenthaler fully agrees.

The basic fear of Mr. Wasserstrom appears summarized at the bottom of page 10 of his statement to the effect that:

* If you were to accord copyright to typeface designs of text matter, assuming originality of their ornamental features, there would be placed in the hands of copyright owners an opportunity to make egregious demands upon publishers. You would proliferate litigation because you would proliferate putative copyrights. Even if publishers were to succeed in the defense of such actions, they would still have the expense of defending the lawsuits for copyright infringement." Pages 10 and 11.

But Mr. Wasserstrom's fear is laid to rest if the protection for an original typeface design is limited to prohibiting its unauthorized use to make a means to compose text and to preventing the use of such means in composing text. Protection would not and should not extend to the composed text. An express statement could be put in the legislation to the effect that composed text set from an unauthorized means is not an infringement of the protected typeface design. Turning to the scope of protection for original typeface designs, it is submitted that the protection should include:

1. The right to injunctive relief to prevent the unauthorized reproduction of the protected typeface design for the purpose of making the means for composing text.

2. The right to injunctive relief to prevent the setting of type from means bearing an unauthorized reproduction of a protected typeface design.

3. The right of destruction of unauthorized reproductions of a protected typeface design incorporated into means for composing text.

4. The right to an accounting to recover damages and profits (A) from whoever makes or sells unauthorized reproductions of a protected typeface design as part of a means for composing text, and (B) from the user of such means in composing text.

5. The right to recover treble damages, in the discretion of the court.

6. The right to recover attorneys' fees in the discretion of the court.

In Mr. Daniel Ebenstein's statement on behalf of Leonard Storch Enterprises, Inc., there are a number of mistakes sufficiently misleading to require correction. On page 25 of his statment, Mr. Ebenstein stated that there are perhaps twenty type designers in the world, and during the question period on his testimony he stated that there were only seventeen full-time type designers practicing in the world. In both his testimony (pages 25 and 26) and during the question period, he implied that these designers were largely on salary to major companies or otherwise controlled by them. At Mergenthaler, we have no salaried type designers. We pay a retainer to one free-lance type designer, Matthew Carter, in order to obtain from him right of first refusal on each of his new designs. For the bulk of our typefaces, we go to one or another of the several hundred practicing type designers available in this world today. Attached are pages listing nearly three hundred type designers from the 1970 edition of The Encyclopedia of Typefaces, at best a partial list. Mr. Ebenstein's picture of a small group of twenty or less individuals all committed to major manufacturers in no way fits the facts.

On page 28 of his statement, Mr. Ebenstein states that "a Mergenthaler font for an ITC face on which Mergenthaler paid a royalty of approximately $200 per font, sold for $331 rather than the usual $131." This statement is false. Since 1 January 1975, Mergenthaler has charged $200 each for V-I-P fonts for ITC faces, of which $60 has been paid to ITC to defray their developmental and promotional expenses.

On page 22, Mr. Ebenstein estimates the cost of producing a $65 Alphatype font and then notes that "other manufacturers' fonts are even more expensive, for an example, $131 for a Mergenthaler font." Aside from the fact that the $131 price is outdated, it should be noted that traditional hot metal fonts and Alphatype fonts produce one size of two typefaces, while the Mergenthaler font produces up to twenty sizes of a single typeface. In other words, approximately ten times the number of Alphatype fonts or traditional hot metal fonts are needed to produce the type that is obtained from a single Mergenthaler film strip that costs very little more than twice as much. This would seem to be a fair bargain, particularly when it is compared with the old price of approximately $500 for a single size of a pair of typefaces in hot metal and when one realizes that the promotional expenses that used to be defrayed against a series of fonts are now carried by this single font.

On pages 27 through 31, Mr. Ebenstein paints a picture of International Typeface Corporation (ITC) as a large and dangerous cartel. ITC is, in fact, a parttime activity of three gifted individuals, each of whom is otherwise employed

full-time. If the part-time activities of this small group threaten the typesetters of Amerca, it demonstrates the sad state of development of new typefaces in this country. Contrary to any implication, ITC has only developed 10 text series over its five year history. The simple fact is that more typefaces for text were not created because of the lack of effective protection to justify the effort and expense of a new typeface design.

On page 5 of Mr. Ebenstein's statement, he says that, "the recognized authors in the field (including Nimmer in his work on Copyright) agree that ordinary typography, which in our terms would include typeface design, is not copyrightable under the present Act." The Committee's attention is directed to the opinion of Professor Nimmer which accompanied Mergenthaler's 17 July 1975 statement filed with your Sub-Committee. The opinion was initially submitted to the Copyright Office on 15 January 1975 and since then has been of public record. It is clear that Professor Nimmer wholly supports protection for original typeface designs under the existing copyright law and presumably would be in favor of such protection under Titles I and II of H.R. 2223.

Both the ITCA statement and the Ebenstein statement emphasize the utilitarian aspect of typefaces and emphasize that typefaces grow out of essentially an effort toward legibility alone. If this were true, we could expect to find a single most legible typeface in general use, rather than the very large number of alternative typefaces in use today. Even a casual study of the history of typography shows that typefaces have always been created for aesthetic and stylistic reasons. Frequently new designs are criticized as being illegible for one reason or another. The Roman letterform of today was so criticized before it replaced the earlier Black Letter, which is now illegible to all but a few scholars. In short, legibility follows as the vast body of readers accepts the forms as pleasant, appropriate and delightful. This cycle has been repeated almost without end since the first crude signs were produced, resulting in the wide variety of alphabets seen in the world today-Sanskrits, Cyrillics, Greeks, Hebrews, Romans, Black Letters, etc. There are, in the end, no differences between one typeface and another than aesthetic differences. Somewhere, some time, a designer drew the forms and shaped them that way for aesthetic reasons. Legibility followed when the world accepted those forms. This development continues today, and would continue to the greater good of the public should proper protection encourage the best work by the best minds in the field.

On pages 14 through 16, Mr. Ebenstein outlines some of the functional requirements of various kinds of typefaces—and implies that these somehow prohibit anything but functionality. In reality, those conditions are merely the limitations within which type designers pursue their aesthetic quest. Restated, they do not dictate how the design is to be drawn, but rather the limitations within which it must be drawn.

On page 6 of this statement, Mr. Ebenstein refers to a news article in the February 1975 issue of Art Direction magazine which allegedly quotes supporters of copyright protection for typeface designs as wanting royalties of 2% to 3% of typesetting fees. In the case of text typefaces, neither Mergenthaler nor any other manufacturer has ever requested more than a royalty on the sale of the font to the user.

On page 23 of his statement, Mr. Ebenstein notes "interestingly, when Leonard Storch Enterprises introduced its first entirely new typeface (OLIVETTE) in fonts for the Alphatype machine and began advertising and promoting the new face, Alphatype Corporation quickly copied the face (under the name OLIVANTE)." As the names Olivette and Olivante would indicate, this "entirely new typeface" is to any typographer a copy of the French design "Antique Olive", created by Roger Excoffon for Fonderie Olive in 1963. Mr. Storch considers this his first "entirely new typeface" because it is the first design that was not contact photo-copied from existing Alphatype fonts. Since Alphatype had not produced "Antique Olive", Mr. Storch had to copy the images of the letters and assemble them himself into the array required for an Alphatype font. This scarcely qualified Olivette as an "entirely new typeface".

Mr. Ebenstein goes on to say that "copying typefaces is a necessary part of the typography business." Mr. Ebenstein is attempting to equate copying with wide distribution. It is not necessary to contact photocopy another's typeface without permission to achieve widespread distribution. It is only necessary that there be widespread availability of a particular typeface for all photocomposition equipment.

To further clarify the record, the principal business of Storch Enterprises has been contact photocopying the photographic fonts of the Alphatype Corporation, and mounting them to fit the machines of Alphatype, with the exception of OLIVETTE and possibly a few others unknown to us. Restated, with limited exceptions, Storch Enterprises does not do its own original art work, but rather obtains its art work by photocopying the Alphatype fonts. On this point, Mergenthaler does not object to fair competition by independent font manufacturers. It does object to the unauthorized and unfair contact photocopying of its typeface font by a competitor.

While there are many other inaccuracies in Mr. Ebenstein's written and oral presentations, they are generally irrelevant and immaterial and not germane to your Committee's considerations.

In summary, the principal objections to protecting original typeface designs are fully met by Mergenthaler's willingness to accept compulsory licensing of protected typeface designs at a reasonable fee and to limit protection for original typeface designs to their use in making means for composing text and to the use of such means in composing a page of text. With these limitations and conditions, there really are no substantive reasons for not protecting the creative and intellectual efforts of the typeface designer. On the contrary, such protection would truly promote the useful arts by giving the necessary incentive to the designer to create original typeface designs.

Bernhard Cursive (or Madonna), 366 CASSANDRE, A. M.