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(c) When the shape of an article is dictated by, or is necessarily responsive to, the requirements of its utilitarian function, its shape, though unique and attractive, cannot qualify it as a work of art. If the sole intrinsic function of an article is its utility, the fact that it is unique and attractively shaped will not qualify it as a work of art. However, where the object is clearly a work of art in itself, the fact it is also a useful article will not preclude its registration.1

Copyright Office Regulation (1959)

Works of Art (Class G).

(a) General: This class includes published or unpublished works of artistic craftsmanship, insofar as their form but not their mechanical or utilitarian aspects are concerned, such as artistic jewelry, enamels, glassware, and tapestries, as well as works belonging to the fine arts, such as paintings, drawings, and sculpture.

(b) In order to be acceptable as a work of art, the work must embody some creative authorship in its delineation or form. The registrability of a work of art is not affected by the intention of the author as to the use of the work, the number of copies reproduced, or the fact that it appears on a textile material or textile product. The potential availability of protection under the design patent law will not affect the registrability of a work of art, but a copyright claim in a patented design or in the drawings or photographs in a patent application will not be registered after the patent has been issued.

(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.124

It is submitted that this review of Office practice shows that the "utilitarian" considerations of statutory copyright protection should apply to a type face, to a type font, and to typography when presented in information-conveying combinations; and that these works should not be excluded on the basis of a definition embracing only objects which convey something other than their appearance. The Office practices were designed to establish registration criteria for objects which are both useful and attractive, and their rationale applies equally well to objects whose use is their appearance.

With regard to utilitarian objects, the review of Office practices suggests several persistent patterns. First, for many years the Office has shown readiness to register technical drawings or blueprints, even if the object depicted is a utilitarian one. Second, there have been fluctuating requirements as to the amounts of original artistic authorship necessary to support registration. Such changes are effected within the Office, even in the absence of legislative or judicial directives. Finally, there has been a gradually increasing Office recognition of dovetailing between copyright and design patent domains, but a faltering hesitancy to enter the realm of industrial designs, and a persistent refusal to register as works of art objects whose shapes are determined primarily by their utilitarian function. D. Administrative conclusions

If "typography" is considered to embrace a type face, or individual letter, a type font, or assortment of type characters in one style, and typography, or the arrangement and position of type on a printed page, these elements may be analyzed individually to suggest an Office policy on their registrability.

The analysis for each involves first a decision as to whether the work is utilitarian in the copyright sense. If it has no such aspect, its registrability may be judged by the usual standards as to whether it possesses a sufficient quantity of original artistic authorship.

If it does have a utilitarian aspect, different quantitative standards apply. Courts have never enunciated satisfactory criteria for determining the registrability of a useful but attractive work. Generally, in considering utilitarian objects, the Office follows the policy set forth in Nimmer's treatise on copyright: "The basic question then is whether the object can be considered a work of art ap

123 37 C.F.R. § 202.10, effective August 11, 1956. 124 37 C.F.R. § 202.10, effective June 18, 1959.

plying the historical and ordinary standards. Where the question is close the answer may turn on whether the shape or form of the object (as distinguished from its intended use) is dictated primarily by aesthetic or utilitarian considerations. If it is the former then the resulting work may be considered capable of constituting a work of art and hence a work of artistic craftsmanship notwithstanding a collateral utilitarian function." 125

In either case, the analysis involves a description of the nature of typical authorship for each kind of "typography," a review of legal and administrative precedent, and a suggested Office practice with corresponding consequences. 1. A type face

Registration for the single type character is not the primary concern of today's applicants. They seek protection for entire fonts or new styles of type, possibly because they recognize that the alleged originality in most new commercial type characters is not readily apparent when the characters are viewed individually. Aside from the ornate type character, which has long been registrable if it contains sufficient original authorship to constitute a work of art, each new letter typically bears a strong resemblance to extant characters. Hence, even apart from characters' utilitarian aspects, they probably do not contain sufficient authorship to be registered as works of art. But individual characters are arguably utilitarian objects in that they are devices by which information is communicated. As such, a character would be registrable under Office standards as a work of art only if it contained more than a minimum amount of original and separable artistic authorship, and if its shape were not dictated primarily by its function. This category does not embrace the "ordinary" new commercial type characters whose copyrightability is the focus of this paper.

126

This absence of substantial quantities of original authorship in individual type characters designed for commercial printing use stems from the designer's salient goal: to create a readable font. It seems that most research in type designing is concerned with legibility. "Legibility research in printing is concerned with the efficiency of the visible word. So, too, is the practice of typographical design." 127 Within the narrow confines of width and height (set size and point size) dictated by standard printing machines, type designers aim to create more readable fonts. Each letter must blend with the others, so that the overall appearance of a font may be appealing; but the aesthetic appeal of an individual character or indeed of an entire font is clearly secondary to its readability."

128

129

Although designers aver that each new character is different from those already in existence, the changes are quantitatively very small, typically involv ing a slightly different location for the widest and narrowest points of a particular letter, which changes the overall shape or appearance of the letter. The height and width of letters for commercial fonts are practically dictated by the Anglo-American Point System, standard set sizes, and extant printing machines. Within very narrow confines, a designer may vary the character, subject to his judgment of its legibility and salability.

130

Usually, in addition to the dimension and scale restrictions, the new letter's shape is limited in that it must be simple enough to be used on high speed presses, easily readable, adaptable to other characters in the font, and sufficiently similar to existing models to appear familiar to the reader." The differences between standard sized individual letters in an old and new newspaper type font, for example, are barely perceptible to the untrained eye, though industry spokesman claim they are easily identified by those in the trade 11

131

Probably, even in the unlikely event that a type designer created new nonornamental characters for use in the publication of limited editions on a hand set printing machine, such letters would be only slightly different from exist

125 M. Nimmer. Copyrights Sec. 19.3 (1970).

120 See Copyright Office Regulation 1956. infra p. 37.

127 H. Spencer. The Visible Word 6 (1968). The meeting on Janary 27, 1971, confirmed this practice with respect to the Company's type design aims.

129 Interestingly, one source asserts that some commercial letters are "beautiful and right" and possess an aesthetic quality independent of their function. Scottish National Gallery of Modern Art. The Art of The Letter (1970). Even if this were true, it would not be determinative of the question of registrability, for that is determined by quantities of authorship rather than by quality or aesthetic appeal.

129 Meeting August 19, 1970.

130 These points were emphasized at both meetings; see generally H. Spencer, The Visible Word (1968).

131 Meeting January 27, 1971.

ing ones, since each was designed above all to be legible. Though the letter may deviate from standard dimensions, its size alone could not qualify it as sufficiently original, since statutory protection would cover its reproduction in any size.

No instance has been found either in the courts or in the Office where the copyrightability of an individual character of the sort discussed here was proffered. The cases which spoke of typography, such as Ricordi, Shulsinger, and Amplex, did not concern original individual characters in the sense here considered. Rather, they involved standard alphabets and punctuation marks whose protection was not at issue. The claims there were found on allegedly original arrangements or presentations of standard elements, viz., the typographical appearance of the printed page. While Desclee admittedly involved a work some of whose type characters were allegedly original, (though probably not ornamental in the Dutton sense), the court's opinion didn't discuss the question of protecting them by copyright, since plaintiff expressly waived reliance on his statutory copyrights.

Clearly, if a standard sized type face, without other embellishments, scroll work, or intricate design, were submitted, Office practice to date would demand refusing its registration as a work of art. Apart from any utilitarian considerations, such a letter would lack the requisite amount of copyrightable authorship to support registration. Both Judge Hand's dicta in Ricordi and M. Nimmer's treatise on Copyright admit of the non-protectability of some types of “ordinary typography" as works of art. If these statements are accorded any validity they must point to the unavailability of statutory protection for an individual commercial type character of the non-ornamental variety.

From an administrative point of view, it would be unwise to buck judicial and scholarly opinion, industry assumption and long-standing Office practice to reverse Office policy on the registration of such works. Too, a claim for such an individual type character would be extremely difficult to examine. Without comparing it with prior art (which the Office as a matter of course does not do), the average examiner would be unable to determine whether a given work contained substantial amounts of original, copyrightable authorship.

Finally, because the image of a type face is almost inextricably entwined with the letter it represents, and because individual letters are arguably utilitarian objects, the courts rather than the Office should interpret the Copyright Law to determine whether its work of art protection extends to individual type characters.

Courts are available to proprietors of such claims. The Office might well agree to register technical drawings for original letters, even of the nonornamental variety, in Class I, provided the application indicates that the claim covers only the "drawing" and not the design. This would involve little additional work for the typical claimant, since such drawings usually would be prepared anyway as prototypes for the matrices.133

The registration would give the claimant easy entrance to court in the case of an infringement, and he would thus enjoy a judicial pronouncement on the existence and extent of copyright protection for his work. A Class I registration (as opposed to a Class G) would not necessarily prejudice his rights, since courts hold that registration classification is irrelevant to determining the extent of benefits accorded a particular work. At the same time, a user would not suffer from a presumptive validity burden in an infringement suit unless he copied the actual blueprint drawings. Thus the Office would not be lending its imprimatur to the broader protection generally accorded a work of art.

I recommend making Class I registrations for technical drawings of individual characters because such drawings clearly contain original authorship and their registration would in no way reverse prior precedent, policy or practice; at the same time, this practice would open an avenue to the courts, where the question of the appropriate extent of copyright protection for such works should be decided.

132 See the "Profile" on Giovanni Marderstelg appearing in the July, 1970 issue of the "New Yorker" magazine. This printer has created a few fonts for use on his hand-set machine, but the article describes his method of printing as a dying breed and says his principal efforts were directed toward the resurrection of Renaissance type faces. Moreover, there is no evidence that his designs vary in any readily recognizable way from established fonts.

133 Supra note 12.

134 See, e.g., the enduring controversy over whether registration for architectural blueprints protects against copying the finished architectural structure.

2. A type font

A type font consists of all the characters in a particular style of type. It is the alleged authorship involved in the creation of admittedly new commercial type fonts which Y now, and X before it, seeks to protect by statutory copyright. Registration of claims in type fonts, as contrasted with other kinds of typography, is at once the most important from an industry point of view and the most troublesome from a copyright point of view. Its importance rests in the fact of the ease and frequency of competitive copying of new designs within the industry. The trouble stems from the fact that granting statutory copyright protection would fly in the face of traditional standards as to requisite amounts of copyrightable authorship for works of art, and from the fact that statutory protection might practically restrict the public's free use of public domain information when printed in a protected font. It should be emphasized that these comments on statutory protection for new commercial fonts of the X and Y variety in no way preclude registration for individual characters or for fonts which could be registered under traditional Office standards on the basis of their extensive original artistic authorship. If a character's shape is determined primarily by aesthetic considerations rather than legibility ones, and if it possesses a substantial quantity of separable artistic authorship, then it may be considered for registration even though it functions as a letter, numeral, or other communicative device. Such a work would usually be an ornate introductory character or collection of them. It would not be a font for high speed printing of the body of text of a newspaper or unlimited edition book. It would not be a font which appeared to the lay observer to duplicate other extant commercial fonts.

Commercial type designers contend that an original font possesses an "overall aesthetic quality" stemming from the appeal of the interrelationship of all the letters, shapes, and figures which comprise a particular font.135 This quality, they say, transcends the particular order of the letters (such as their presentation in standard sequence, A through Z) and persists when the individual characters are scrambled or rearranged to form new sequential combinations. The fact that a font contains all the components for conveying information renders it a utilitarian object in an even stronger sense than that in which a single character may be considered utilitarian. This fact, coupled with the fact that the design of a commercial font is principally determined by considerations of legibility, renders the typical font unregistrable as a work of art. As with individual characters, it is conceivable that a font could be designed primarily for artistic rather than functional purposes, and that it could contain such quantities of separable artistic authorship that it would be registrable under traditional Office standards for works of art. Ordinary new commercial type fonts would not fall under this aegis.

This formula is in line with present Office practice and court pronouncement. If the courts have not addressed themselves to the possibility of statutory protection for individual letters, neither have they considered the broader question of copyright for a conglomerate of those of a particular style, in the form of a type font. Scholarly opinion, for the most part, is equally silent. Nimmer makes a general statement recognizing that "ordinary typography" is not copyrightable because it is based on the alphabet and thus lacks the requisite originality; but he decries the Regulation's proscription for “mere variations of typographic ornamentation, lettering or coloring," citing Ampler and Shulsinger. Judging from his citations, Nimmer's statement probably refers to what this paper calls typography, rather than to type fonts. Otherwise, the statement must be dismissed as unsupported, for neither cited case involved original type characters.

Absent any judicial authority in point, one recent writer assumed the copyrightability of original type fonts in the following perplexing statement: "It is true that decisions of the courts of the United States on every level seem to be uniform in the opinion that 'a distinguishable variation in the arrangement and manner of presentation by reason of dark background, particular size of letters used, their spacing and arrangement gives the product independent authorship worthy of protection against copying . . . and plaintiff is entitled to an injunction restraining a competitor from copying such illustrations (typography)' [Citing Amplex]. I do not believe, moreover, that anyone will seriously argue against the copyrightability of revised material in the public domain, or against

135 Meeting, August 19, 1970.

the protection accorded illustrative originality of type fonts or illumination." * Protection for type fonts is not this author's primary concern. He seeks copyright protection for typography per se, rather than for type characters or fonts. Moreover, his observation on the copyrightability of type fonts is made without authority against a background where the weight of past practice and present policy point to opposite conclusions.

From a practical point of view, similar considerations to those warranting the continued refusal of Class G registration for individual characters pertain here. In the form in which the fonts are usually most widely distributed, a typical examiner would have great difficulty recognizing the presence of substantial original authorship. The authorship obstacle would be even greater if the font is conceded to be a utilitarian object. Then, since it is an object whose form is dictated by its function (legibility), and one which lacks substantial separable artistic authorship, it clearly is incapable of supporting a copyright registration. To change our standards on this point would be to do likewise with respect to all utilitarian articles with artistic shapes.

A more theoretical drawback to offering registration for a type font is that the collective work for which protection is sought has no permanent, fixed form. Prospective applicants seek protection for the font in whichever form the component characters appear. Since copying is possible even from inked proofs, protection to be effective would have to extend beyond the matrix or grid stage to the innumerable variety of forms in which the font is finally embodied on the printed

page.

137

Perhaps the salient argument against copyright protection for a commercial type font is that it might create a corresponding restriction of free use of the underlying reading material that courts have long sought to avoid. Non-protectible underlying material might be kept from the public for a potential fifty-six year period unless the user was both aware that the copyright notice protected only the font and unless he was willing to transcribe the entire body of material into an unprotected type style.

Should a proper case ever reach a court, it might conceivably avoid such a result by creating an implied-in-law license, but would the Office want to foster such a possibility with its concomitant restriction of the traditional bundle of rights implied in a statutory copyright?

138

On balance, it seems that the regrettable plight of the commercial type font designer should not be alleviated by Copyright Office agreement to register his fonts as works of art. Particularly if we agree to consider registration for technical designs of the individual characters, the door to the courts is open to the designers; and it is the function of the courts, not the Office, to balance the considerable equities at stake here.

3. Typography

139

Finally, we must consider the advisability of modifying Office practice to consider registration for specific typography or the arrangement and presentation of type characters (whether or not the characters themselves are new) on the printed page. This is one issue on which courts have provided some direction. They have set boundaries beyond which no protection is possible unless precedent is ignored. Thus, aside from the extreme Grove Press opinion, and dicta in the Bailey case,140 the only unfair competition protection available is that founded on misrepresentation, providing secondary meaning can be established." Ricordi may leave open the possibility of common law protection surviving publication if the work contains a specfic reservation of rights in typography, but at least one authority attacks the validity of this position.1"

136 F. Jehle, "Typographic Copyright, Public Domain and Unfair Competition," 1 Scholarly Publishing 255 at 256 (April, 1970) (emphasis added). The copy gives no indication of the author's profession or legal training. if any.

137 See, e.g., Judge Hand's opinion in the Ricordi case discussed supra at p. 10; See generally P. Goldstein, "Copyright and the First Amendment." 70 Columbia R. Rer. 983 (1970).

138 Registration for ornamental characters would not involve a comparable restriction since such fonts would not be used extensively for high speed commercial printing. 189 Supra note 42.

140 Supra note 44.

141 190 F. Supp. 381. 389-91 (2d Cir. 1952). The availability of the INS kind of misappropriation protection has been negated by the Desclee and Ricordi cases. 190 F. Supp. 381. 388: 194 F. 2d 914. 916.

142 M. Nimmer, Copyrights Sec. 33 (1970).

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