Oler study, the present regulations and current scholarly opinion have been based.

Thus, Title I which is identical to the Senate version S. 1361 (now S. 22 in the 94th Congress) does not purport to extend copyrights to typeface designs. As set forth in more detail below, amendment of Title I to specifically incorporate typeface designs would be disastrous.

Title II

Title II of H.R. 2223, as presently drafted, does not cover typeface design because of the definition of "useful articles" contained in Section 201(b) (1) and because of the exclusions of Section 202(b), (c) and (d).

Title II of the Bill provides protection for ornamental designs of "useful articles". Possibly without specific intention, the term "useful articles" is defined in Section 201(b) (1) (and in Section 101 of Title I) of the Bill in such a way as to specifically exclude ornamental designs of the letters of the alphabet. A useful article is defined in Section 202(b) (1) as "an article which in normal use has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." The letters of the alphabet certainly have a "utilitarian function" and should be considered in the same light as other useful articles in this regard, as discussed in detail in the Oler study and by numerous commentators during the November 7, 1974 hearings before the Copyright Office. However, the intrinsic utilitarian function of the letters of the alphabet is merely "to convey information" and thus is specifically excluded from the definition of useful articles in this paragraph.

It may be argued that the type film font or film strip is the "useful article" whose function is to make printing plates. However, viewed this way, the shape of the type on the font is certainly not an ornamental design of the font-such typeface is not intended to ornament the font or affect the font's appearance but only to be projected by mechanical means as letters of the alphabet. If a film font is a useful article and the shape of letters of the alphabet on it is the "design" of the font, then a reel of movie film is similarly a useful article and the pictures on the film are its "design" and motion pictures would be protected under Title II. Under this interpretation, photographic slides (transparencies) would be protected while photographs would not. Similarly, books could be deemed useful articles with the printed text being the "design" of the book. Certainly, Title II is not intended to be interpreted in this way and the ornamental design must ornament or be intended to affect the appearance of the useful article as opposed to being an integral element of its utility.

Thus, while Title II, which is designed to cover useful articles would be the more appropriate place to consider typeface design under the Bill (if at all), the initial definitions of Title II appear to specifically exclude typeface design from this Title.

Secondly, the exclusions contained in paragraph 202(b), and (c) deny protection under Title II to articles which are "staple or commonplace, such as a standard geometric figure, familiar symbol, emblem or motif, or other shape, pattern or configuration which has become common, prevalent or ordinary" and excludes protection of all designs which differ from such staples "only in insignificant details or elements which are variants commonly used in the relevant trade." Section 202(d) further denies protection to configurations which are "dictated solely by utilitarian function of the article that embodies it." Under these standards, substantially no typeface design would be subject to exclusive rights.

Certainly, typeface designs as defined above and as shown in Exhibit A (which are fairly representative of the degree of variation to be expected in text typefaces) are familiar symbols which have "become common, prevalent or ordinary." And, under 202(c), the designs shown by Exhibit A differ from one another only in "insignificant details" or in elements which are "variants commonly used in the trade." Volumes have been written on modification of typeface designs by addition of serifs (the feet at the base of the letters), alterations in boldness of vertical stroke, horizontal stroke, etc. and these variants are very commonly used. In fact, many such variants can now be mechanically introduced either by lens systems or computer dictated programs.

If anything is "staple or commonplace" or a "configuration which has become common, prevalent or ordinary," it is the shape of the letters of text alphabets. Under Section 202(d), typeface design would be excluded since the shape of the letters are dictated by the utilitarian function of the alphabet, i.e., legibility and use in printing. Numerous witnesses at the Copyright Office hearings (Mr.

Solo for one) and the designers who appeared at the Typeface Symposium conducted by the Department of Agriculture on October 15 and 16, 1974, conceded that the functions of the typeface designer is to create an alphabet that is legible and readable. As Adrian Frutiger said at the Symposium, the "beauty" of a typeface "is its readability" and as Klaus Schmidt said, the typeface design should be "invisible" putting words in the reader's mind without interference from style. There are those who have argued that the basic form of a letter is a simple stick figure of the letter and that anything added to the stick figure is "design" and not "utility." This is entirely untrue and there are volumes written on the use of various conventional typeface variants (such as serifs, distinctions between capital and lower case letters, certain width and thinness relationships, use of white space within the letter and other features) to create identification and recognition of the letter form in text reading. These elements of shape, which have been executed and reexecuted over hundreds of years, are not elements of design, but are elements of utility in that they serve to make the alphabet legible and useful.

Numerous studies have been done and volumes written about the design of letter shapes for readability. Three volumes which discuss and review some of the work done in this area are Miles A. Tinker, The Legibility of Print, Iowa State University Press, 1963; George R. Klare, The Measurement of Readability, Iowa State University Press, 1963; and Sir Cyril Burt, A Psychological Study of Typography, Cambridge University Press, 1959.

In summarizing the legibility of letters and digits in Legibility of Print, Professor Tinker states (p. 42) that the legibility of a typeface is determined by “judicious use of the following: (a) Serifs, (b) heaviness of stroke, (c) delineation of distinguishing characteristics, (d) simplification of outline, (e) white space within a letter, and (f) width of the letter."

In short, if your daily newspaper were printed in stick figure capital letters, it would be impossible to read with any speed. Typeface design makes the alphabet usable.

In addition to the elements of letter form which are utilitarian in that they are directed to the readability of the alphabet, there are many features of letter shape which are dictated by the technology of printing and typesetting, or the mechanics of the eye. These elements of form are also clearly dictated solely by utilitarian function of the article. For example:

(1) Modern high speed printing and modern ink types have required adjustments in letter shape to permit appropriate ink flow when printed at high speeds. Thus, in modern alphabets the old fine vertical lines which would become washed out in high speed printing had to be filled out and broadened, substantially changing the appearance of the typeface. Also, white spaces used in letter forms had to be broadened so that the use of high flow rate inks in high speed printing equipment would not bridge the white areas of the letters.

(2) Alphabets have to be carefully "unitized," i.e., letters must be designed to fit into specific discrete width measures so that they can be “justified” in modern typesetting equipment. In equipment of this type, every character must have a discrete number of units of width, the single width unit being a fixed quantity for that machine. Accordingly, portions between letter widths (which may significantly affect the appearance of the letters) must be selected for functional

reasons.

(3) Modern alphabets must be reproducible on cathode ray tubes so as to be functional in systems where typesetting is accomplished by photographing a cathode ray tube. This is clearly the high speed print production method of the future. However, the cathode ray tube accuracy depends upon the number of dots per square unit of area available on the tube and commercial systems tend to sacrifice resolution for higher speed which can be obtained with fewer dots per area. The alphabet letters are inherently distorted by display on a cathode ray tube because it is impossible to draw a smooth curve with dots arranged in horizontal lines. The shape of the letters used on systems of this type must be created so that the built in errors of the cathode ray tube are deemphasized rather than emphasized by the letter forms. This is, again, a functional feature of shape.

(4) Further, it is a well known physical phenomenon that the letter shape must be designed to overcome several basic optical illusions resulting from the mechanism of the human eye itself. The eye tends to see vertical strokes as being broader than horizontal strokes of equal width. In order to create uniform appearance of line width, the width of the various elements of the letter must thus be varied. Further, the eye tends to see lines that meet at angles (such as the base

of the letter "y" or "w") as being of varying thickness when in fact they are of uniform thickness. These optical illusions are traditionally corrected in designing an alphabet and this is not an element of ornamentation.

In summary, the shape of a text alphabet is dictated by its function and any minor elements of shape intended for ornamentation would be impossible to detect and distinguish. Thus, under the definitions and under the substantive provisions of Title II as now drafted, no exclusive rights in typeface design would be created.

WE OPPOSE AMENDMENT OF THE BILL TO CREATE EXCLUSIVE RIGHTS IN TYPEFACE DESIGNS

The issue now before the Committee has frequently been characterized by the proponents of change as "typeface piracy" in an attempt to analogize the present situation to the tape piracy issue.

In fact, the issue here is not a matter of "piracy" at all, as should be evident from the array of groups who have opposed the proposed creation of exclusive rights in typefaces. For the first time, it is not the individual artist or creator who is pressing for expansion of the Copyright Law, but the large commercial manufacturers and promoters (specifically, Mergenthaler Company and International Typeface Corporation). Those who have opposed the creation of exclusive rights in typeface design, for example, those who testified in opposition at hearings before the Copyright Office, include Irwin Karp of the Author's League of America, Allan Latman who testified here concerning Title II, the national associations of typographers who would bear the brunt of the proponents economic power if exclusive rights were created, the publishers as represented by the Hearst chain and many others. Further, the American Institute of Graphic Arts (AIGA) which represents the typeface designers and graphic artists themselves, issued a position paper on typeface supporting some form of compensation for the artist (which we would fully support), but opposing creation of exclusive rights in typefaces, i.e., insisting on some program of mandatory licensing making all typefaces available to all manufacturers and some screening procedure limiting protection to typefaces approved by a panel of experts. A copy of the AIGA position paper is attached hereto as Exhibit E.

In short, the pressure being brought to bear for creation of exclusive rights in typeface designs is an effort by the industry giants (who themselves started in business by copying every typeface design then available) to shut the door to new competitors by obtaining exclusive rights in the single most important part of typesetting equipment, the typeface, and to perpetuate their market position by tying equipment sales to exclusive typefaces which they have the power and position to promote and popularize. If granted exclusive rights in typeface designs to the exclusion of competitors, the large manufacturers would have the power to force typographers to buy their equipment in order to set type in their exclusive typefaces which would be demanded by the typographers' customers. The liberal provisions of copyright were never intended to be abused in this manner; the exclusive rights which the proponents seek are entirely incongruous with the concept of the Copyright Laws as embodied in the present Bill; and the creation of such rights in the Bill before the Committee would seriously damage the typographic industry as it exists today.

INDUSTRY BACKGROUND

To appreciate the pivotal role of typeface design in the typographic industry, one must know something about the structure of the industry.

The independent typographers of this country comprise approximately 1600 small business units (4 with under 20 employees) scattered throughout the country according to a 1971 report of the U.S. Department of Commerce. The 1600 typographers operate on a very low profit margin, usually under five percent of sales before taxes. It is a highly competitive business with most cities having a number of competing firms who vie for business on the basis of quality, price, service, etc. As I am sure the spokesman for the ATA and ITCA (the national typographers groups) will affirm, the typography industry is probably one of the most competitive industries in the United States today.

There are approximately six popular machines (manufactured by six large companies) on the market (other than computerized systems), for phototypesetting text type, i.e., the text portion of advertising or other printing. Each of these machines represents substantial investment for the typographer and costs

range in the area of $10,000.00 and $30,000.00 for a single series of conventional equipment to hundreds of thousands of dollars for computerized equipment. A conventional text phototypesetting line would include a keyboard (very much like an IBM typewriter keyboard with added controls) and an assembling unit. Information introduced at the keyboard is converted to paper tape, electronic tape or other form which is then placed on the assembling unit. The type font is inserted in the assembling unit which moves the font in conjunction with a group of lenses and shutters to expose the appropriate letters on a sheet of film from which the printing plate can eventually be produced.

In addition to the text machines referred to above, less expensive semi-manual machines are employed in the setting of display type for headlines, etc. in an essentially manual letter-by-letter operation.

Each typographer will generally have only one manufacturer's phototypesetting equipment, even though he may have more than one unit. The reason is obvious. With all the same equipment, the same machine operator can work on one machine or another: a single repair facility can service all equipment in the shop; spare or replace parts for only one type machine need be available; etc. More important, in addition to the investment in machinery, the typographer's most substantial additional investment is his investment in type fonts, the film sheet which contains letters of the alphabet, etc. in one particular typeface. For a representative machine such as the Alphatype machine, there are approximately 250 different typefaces available (two faces per font) with approximately 10 individual fonts being required for each typeface in different point sizes. Each such font sells for about $65.00 per font. If an average type shop has only 160 different typeface designs in all point sizes, it would require approximately 800 different fonts which represent an investment of approximately $52,000.00 over and above the cost of the phototypesetting equipment. These text fonts are not interchangeable between the machines of different manufacturers and a font manufactured for the Alphatype machine is useless on a Mergenthaler or Singer machine just as a font for a Mergenthaler machine is useless on Alphatype or Singer machines. Thus, one of the most important economies in using only one manufacturer's equipment is that the typographer need stock only a single library of fonts.

As should be apparent from the above facts, each machine manufacturer has a ready-made captive market for the sale of fonts for its particular machines and fonts are sold at a substantial profit. A font for the Alphatype machine which costs approximately $65.00 represents approximately $8.00 of parts and labor, including designer's fees or designer's salary, if any. It is not surprising that according to its 1973 Annual Report, Alphatype Corporation, which did a gross business in 1973 of 4.85 million dollars, reported pre-tax profits of 2.8 million dollars, and in 1974 on sales of 4.94 million dollars reported profits of 2.6 million dollars. That's in excess of a 55 percent profit margin (almost unheard of in American business) as compared to the typographer's 5 percent margin.

Other manufacturers' fonts are even more expensive, for example, $131.00 for a Mergenthaler font.

The incentive for manufacturers to introduce new typefaces is obvious and the history of typeface innovation has shown that manufacturers respond to the economic return available to the company that introduces and popularizes new typeface designs. Manufacturers have over the years spent considerable time promoting new typeface designs to the advertising agencies and other users of type in order to generate sales for their very profitable new fonts. Some manufacturers have departments whose entire purpose is devoted to the promotion of new typefaces and it is well known in the industry that even the best new typeface design would not be worth a penny without promotion.

EFFECT OF EXCLUSIVE OWNERSHIP OF TYPEFACE DESIGN ON TYPOGRAPHIC INDUSTRY

Under the law as it has existed to date wherein there are no exclusive rights in typeface designs, new modifications quickly become available on a variety of machines and important faces can be made available on every machine. 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). Copying typefaces is a necessary part of the typography business.

The reasons the manufacturers would like to alter the present law and obtain exclusive rights on new typeface designs are (1) to protect their exorbitant

profit position in the sale of fonts by excluding all independent manufacturers and hence all competition; and (2) with proper promotion, a strong manufacturer could create a demand for a new face which it alone would have the exclusive right to sell. The powerful manufacturers (Mergenthaler and others) would then make these exclusive faces available on their machines and nowhere else. Since fonts are not interchangeable from machine to machine, this is easily done. These exclusive typefaces would be used to generate new machine sales which would in turn be used to generate sales for other fonts.

For example, an advertising agency or other customer for typography is exposed to the manufacturer's new typeface promotion and decides to have a particular job set in that typeface. He sends the job to his typographer. If the typographer has the manufacturer's equipment, no problem is created. But, if the typographer has the equipment of a different manufacturer, the face would not be available. He must then either refuse the job (and eventually lose the customer), or buy the other manufacturer's equipment. Having bought the other manufacturer's equipment, it would be extremely inefficient for that equipment to sit idle except when the particular exclusive typeface is needed. Therefore, the typographer would have to buy at least a partial library of typefaces for his new equipment. The result will be that for a typographer to effectively compete, he must have available equipment of all the major manufacturers. Most typographers in business today could not operate their business under those circumstances.

It should also be made clear that under the present industry structure, the creation of some new exclusive right in typeface design would not improve the position of the individual typeface designer. The typeface designer (there are perhaps 20 such designers in the world) cannot popularize and sell a new typeface without the sponsorship and promotion of one of the major manufacturers or typeface promoters, and there is nothing in the present Bill to require the manufacturer or promoter to license others. Nor is there any reason to believe that the designer will share in any way in the manufacturer's resulting sale of machines and other fonts.

There is more than enough profit in the sale of typefaces under the present law to compensate the designer very well, if that was the manufacturer's desire. Our client would have no objection to a plan to compensate the typeface designer for original work and, in fact, does so in connection with his original faces. In fact, he has offered design fees to several designers, but was told that they could not be accepted because of obligations to large manufacturers and promoters. In short, the large companies arguing for exclusive rights are simply using the designer and the Copyright Law in an attempt to get the commercial result they desire.

The manufacturers and promoters who seek the creation of exclusive rights argue that they have no intention of maintaining exclusive control over typeface designs and of forcing sales of typesetting equipment through such exclusivity. But Congress cannot grant new rights based on a back door assurance that such rights will not be used. The manufacturers' move toward exclusive typefaces has already begun. Apparently expecting a change in the Copyright Law (by Copyright Office action) in April, 1974, Mergenthaler, in March, 1974, began promoting its new exclusive typeface. AURIGA. Attached hereto as Exhibit F is a full-page ad taken from a trade journal for the Mergenthaler AURIGA typeface published in March, 1974, bearing the notation "Typeface Copyrighted 1974 Eltra Corporation" (Eltra is the parent company of Mergenthaler).

If granted exclusive rights in typeface design, the large manufacturers will use those rights to monopolize the typographic machinery business. International Typeface Corp.

More dangerous even than the large manufacturers operating independently is the new organization or cartel of manufacturers operating under the name International Typeface Corporation (ITC). ITC was originally created on a 50/50 basis by an advertising agency and a typographer and has actively promoted change in the Copyright Laws since its inception. In fact, it has frequently advertised that one of the principal uses for its funds is to obtain exclusive rights for typeface designs. When our client was asked to join ITC (after having been refused membership a year before), he was advised that a $5,000.00 "contribution" to the fund to change Copyright Law would be expected. The activities of ITC over the past four years suggest the kind of commercial power that will be created by exclusive rights for typefaces. Even without exclusive rights, ITC purports to license the right to reproduce new ITC typefaces