(2) the term of protection may be divided into several periods, each extension being granted only at the request of the owner of its protected typefaces.

The present ten year limitation for protection in the design protection bill precludes the United States from adhering to the Vienna Treaty for the protection of typefaces under the provisions of Title III.

If the Copyright Office believes that the protection for original typeface designs should be under the design protection bill, the Copyright Office is urged to have the bill clarified so as to cover typeface in the definitions and exclusions. Further, it is urged to have the term of protection modified to a minimum of three (3) successive five year terms so as to qualify under the Vienna Treaty.

If the defects in the design protection bill in connection with original typeface designs can be cured, there are other features of the bill which are particularly well suited to the protection of typeface—namely, the notice provisions and the infringement provisions.

Section 306 requires that a design for which protection is sought must have a specific statutory notice located so as to give reasonable notice of design protection "while the useful article embodying the design is passing through its normal channels of commerce," Section 306(b). So long as the proprietor of the design complies with these provisions, protection is not affected by the removal, destructions, or obliteration of others by the design notice on an article. As applied to typeface, this would mean that a proprietor of a typeface would only have to put the notice on either the drawings which he licenses or on the grids bearing the protected design. The fact that others omitted the design would be immaterial to the protection. This is a significant improvement over the notice provisions under the current Copyright Law and even under the proposed general copyright revision.

Section 307 protects an innocent infringer of the protected design without the required notice until he receives written notice of the design protection. Assuming that a particular book were set in a protected type design, and that the design proprietor's notice was not repeated in the book, Section 307 would permit a reprinted to copy the book without the design proprietor's permission unless the reprinter had actual notice of the design proprietor's claim of protection in the typeface design.

The foregoing points are believed to highlight the significant aspects of the design protection bill as it applies to original typeface designs. Further discussion of the remaining provisions does not appear to be necessary.

In summary, Mergenthaler believes that original typeface designs are clearly intended to be covered as copyrightable subject matter under Title I the general Copyright Law revision. As Title III or the design protection section is presently drafted, its definitions and exclusions appear to preclude original typeface designs from protection thereunder; and the term of protection is manifestly too short. Accordingly, it is doubtful if a copyright proprietor of an original typeface design would wish to avail himself of the option under Section 113 of the general Copyright Law revision to seek protection under Title III. On the other hand, if the deficiencies in the definitions, exclusions, and term of Title III were corrected, it might prove to be a very viable form of protection for original typeface designs in view of its more realistic notice requirements.

IX. Summary of Responses to Copyright
Office Questions

In the September 10, 1974 Federal Register notice, the Copyright Office specifically requested comments in five areas. These questions were responded to in depth at the oral hearing on November 6, 1974 in the statements on behalf of Mergenthaler. Written copies of these statements have been submitted to the Copyright Office and are incorporated herein by reference. Nevertheless, for the purpose of completeness, the responses to the five areas will hereinafter be summarized.

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 answer to this query is a resounding "Yes." All letter forms are useful articles to the extent that they are recognizable and convey information. But all of the letter forms in the myriad numbers of differing typefaces in the public domain differ in one significant way-i.e., their decoration. These decorative differences are subtle to the untrained eye but obvious to the professional. It is that decoration which is original with the designer that is the proper subject matter of copyright protection. The useful article or utilitarian concept is simply not relevant to the question of the copyrightability of typeface, see Mazer v. Stein, supra, and In re Yardley.

2. The distinctions, if any, between calligraphy, ornamental lettering, and typeface designs for copyright purposes.

For copyright purposes, there are no distinctions.

Calligraphy is defined in Webster's New International Dictionary as: "fair or eloquent writing or penmanship; writing as a decorative art." By definition, calligraphy is necessarily artistic and original, and is clearly copyrightable subject matter within the meaning of "writings" as used in the Constitution and in the Copyright Act of 1909, Section 4. Ornamental lettering generally refers to lettering whose principal purpose is to ornament. By definition, it is copyrightable subject matter so long as it is original.

The important distinction between ornamental lettering and typeface is that ornamental lettering is not suited for use in preparing a page of text. Its design is generally

dependent upon the particular object and space in which the ornamental lettering is used.

Typeface is used for setting a page of type. It includes all the letters and alphabets, and their accessories, such as accents and punctuation marks, numerals and other figurative signs, etc. which are intended to provide means for composing texts by any graphic technique.7

The important aspect of typeface is that it is a consistent repeating of design elements in the characters which requires that the designs of the characters and all combinations must be considered.

Restated, the net result of ornamental lettering is to produce one or only a few words which are ornate and beautiful; while the net result of well designed typeface is to produce a beautiful page of type.

The design of typeface is necessarily an act of intellectual effort to decorate what are basically customary letter forms having a utilitarian purpose. It is the decoration of these letter forms which is believed to be the proper subject matter of copyright protection.

3. Whether a typeface design can, by its nature, incorporate the degree of originality and creativity necessary to support a copyright.

As indicated in the preceding law section, "original" has been defined to mean little more than the particular work owes its origin to the author and that the author contributed something more than a merely trivial variation, Bell v. Catalda, supra. In her comprehensive study, Miss Oler noted in connection with standards of copyrightable authorship for works of art, ". . . A review of these comments indicates that courts for the most part determine the registrability of works on a case-by-case basis, and that they generally affirm the Holmes' view that originality is a quantitative standard which requires that the author adds something of his own, something which has not been copied," page 28 of the Oler study. Miss Oler further noted that the court opinions "... show a judicial willingness to recognize the copyrightability of original arrangements of substantial amounts of public domain elements, where the materials lend themselves to a variety of combinations or methods of presentation, and where the arrangement in question is recognizably different from those standard to the trade," Oler Study, page 34.

In the case of typeface, the difference between one and

another is the decoration of the skeletal letter forms and characters. To the extent that the decoration is old, it cannot be claimed to be original. To the extent that it is a combination of design elements not heretofore appearing together, the design is necessarily original and the designer's own. He has added something more than trivial variations. He has created a copyrightable work of art.

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 variance of earlier designs.

Not only can standards be established for classifying typefaces, but, as indicated in the preceding section on originality, there are a number of works in existence on typeface classification. Since typeface design is a structured and disciplined art form, it is easier to define standards here than in the field of fine arts.

In any classification of typeface designs, it would be necessary that they be considered by a proficient typographer rather than a mere layman. The differences in design are subtle to the layman, but clear to the professional typographer. Since typeface designs are normally purchased by skilled typographers, the differences between them should also be considered by skilled typographers. Such a skilled typographer could readily determine whether a particular typeface design is a mere copy or a minor variant of an earlier design, or whether it is, in truth, original. There will always be borderline cases such as the Ronaldson/Tiffany case. But these will be the exceptions, rather than the rule.

Having responded to the Copyright Office query whether classification standards can be established, the question is presented to the Copyright Office why it believes it necessary to have such a classification system. The Copyright Office maintains no other subject matter indices that would be comparable to such a typeface design classification system.

5. Assuming the potential copyrightability of certain typeface designs, the practical means of compying with the formal requirements of the Copyright Law as to notice, deposit, and registration.

The practical means for complying with the notice requirements of the Copyright Law would be to place the statutory notice of copyright on the original art work and the copies thereof which are licensed to other grid manu