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From the point of view of possible statutory protection we find that though mere pagination is not protectible for want of originality, at least one court has indicated that the typographic arrangement and presentation of public domain letters may be protectible." Another court, by analogy, has said the same thing with regards to the presentation of colors.145

Thus, it seems likely that the Office should change its practice in response to these cases and consider registration for some apparently original presentations of type characters, so long as the claim clearly extends only to the arrangement and not to the underlying material and so long as the arrangement represents more than a minimum quantity of original authorship. This is the narrowest possible reading of Amplex and would practically preclude registration for almost everything other than that type of advertising presentation where no content is conveyed and where the arrangement is not a standard one.

In most cases where context is conveyed by word or number groups of type, it could be argued that the layout is functional if it seems designed to aid legibility rather than to appeal to the aesthetic senses. In this event, the layout would be registrable only if it were clearly not standard and contained a quantity of original copyrightable authorship. For example, if the words of the Declaration of Independence were presented in such a format that they appeared on the page as a portrait of Thomas Jefferson, the work could be considered for registration as a work of art provided the application contained a statement limiting the claim to the original arrangement. The registration would not include the information content of the Declaration (i.e., the verbal expression) or the style of type in which it was printed. The vast majority of applications (if any) based on typography (in the narrow sense of the term) would be rejected for want of sufficient original copyrightable authorship.

140

This policy follows recent judicial dictates without contradicting the Office's earlier Strauss study on copyright protection for type fonts and typographic arrangement. At the same time, it is admittedly open to criticism for inconsistency. If obviously standard objects can be copyrightably arranged, why can't public domain text also be registrable? 147 The only retort would be that when type characters are not presented in word-forming combinations or other information-conveying manners, they are not utilitarian and need not possess a quantity of separable artistic authorship in order to be registrable under present Office standards. This formula would reflect the Office's policy against restricting the public use of what might be public domain information or expression by registering a copyright in the type in which that information is printed. It does not offer as broad copyright protection as that sought by Professor Nimmer: "... [o]ne who reproduces a public domain work in original typography should be able to obtain a copyright upon such a derivative work so as to preclude others from photographing the pages of the work even though such copyright will not preclude a copying of the words as distinguished from the typography.'

149

148

But in view of Nimmer's analysis of the case law as saying that "once a work has entered the public domain no common law copyright or statutory copyright protection may be claimed for the typography as such, so that the work may thereafter be photographically copied," 150 it seems the only practical Office practice. Where the risks to the public users would be so high in restricting the material by granting registration, the Office should not undertake the burden of determining whether the underlying information is public domain and when

143 Eggers v. Sun Sales Corporation, 263 Fed. 373 (2d Cir. 1960).

144 184 F. Supp. 285 (E.D. Pa. 1960).

148 294 F. Supp. 545 (S.D.N.Y. 1968).

146 An analogous case, presenting text from the Bible as a portrait of Jesus, arose in the Arts Section within the past three years. It could not be located at the time of this writing.

147 Jehle. for example, argues for across the board copyright protection for the "skill and awareness" involved in "the selection, setting, arranging, and presentation of type styles to enhance the printed work." Jehle, supra note 136 at 255. He admits that he is without "legal basis" in seeking such protection. Id., 256.

148 Without addressing himself to the possible restricted information ramifications, Jehle suggests that protection for the publisher's typography be obtained by statutory recognition of ". the existence of a 'work product.' apart from the expression of ideas by the author, which will be protected after the content itself (expression by the author) falls into the public domain. Id., at 258."

Jehle continues: "Inclusion of recognition in a statute relating specifically to unfair competition in the reproduction of another's typography, or a recognition that the copyright of the 'typography' can survive the relinquishment of the copyright covering the author's expression, may be the only salvation for the original publisher in the face of pirating made possible by new technology."

Ibid.

149 Nimmer supra note 98, at 33.

150 Ibid. (footnotes omitted).

it became so. Unless the courts at a later date command such an investigation, the Office should not volunteer it.

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If this standard is adopted as Office practice, the reference to "typographic ornamentaton" might be deleted from Regulation 202.1(a), leaving the prohibition against "mere variations of lettering or coloring; mere listing of ingredients or contents. . . .” That term is confusing in that “typography” usually refers to the arrangement or appearance of type on a printed page. As used here, it seems to refer to the ornamentation of a single letter, yet it has been interpreted by the Office, and presumably by the public as well, to embrace a type face, type font and typography. Since the proposed practice cannot be succinctly expressed in the context of this Regulation, since the prohibitions outlined in it are not intended to be exhaustive, and since the proposed practice would not deviate from our general standards for works of art and utilitarian objects, the deletion need not be replaced by a new statement. Moreover, since the term "typographic ornamentation" is ambiguous, its deletion should not mislead the public to any conclusions with respect to the registrability of a type face, a type font or typography.

In the alternative, since the General Counsel believes the Regulation should make some mention of the noncopyrightability of typography as authority for Office rejections of claims, the Regulations might be revised in accord with a newly drafted set of Office practices.

IV. CONCLUSION

Ordinarily commercial printing type designs of the Y and X variety have never been and are not now registrable under judicial and Office standards of copyrightability as works of art. They are primarily utilitarian objects or devices for conveying information, and in the typical commercial design the shape of the individual character and of the entire font is determined by its legibility function. The Office might offer registration for technical drawings of the characters or fonts in Class I, with an indication on the application that the claim extends only to the drawing. Such registrations would be in line with our practice for other utilitarian works and would at least give the applicant an entry to court where he could test the validity of his claim to broader protection.

This formula does not preclude registration as a work of art for a type design which is so ornamental that it possesses a quantity of separable artistic authorship capable of supporting a copyright registration. Such a design would differ recognizably from "ordinary" commercial designs, and its shape would evidently not be determined by its function of legibility. It would probably be too intricate to be practically useful on high speed presses used for mass production of printed material.

Typography or layout design is likewise incapable of supporting a registration unless it possesses a sufficient quantity of original artistic authorship. Hence, if the layout portrays informaton-conveying printed text, it would be considered only in the unusual event that it contained more than a minimum quantity of separable authorship. A layout whose outline constituted a recognizable picture might be such a case. If the layout contains no information-conveying groups of symbols, it need only be recognizably original and not standard to support a copyright registration. For any registration made in this category, the corresponding application should clearly indicate that the claim extends only to the original arrangement of public domain elements.

I suggest that the above practice be outlined in an Office I.D., and that the current Regulation's reference to "typographic ornamentation" be deleted from Section 202.1(a) or be revised in accordance with a newly drafted Office practice

EXHIBIT E

THE AMERICAN INSTITUTE OF GRAPHIC ARTS,
New York, February 7, 1975.

NOTE TO THE EDITORS

Enclosed is a Statement of Position of the American Institute of Graphic Arts concerning typeface design protection. This issue, as you know, is currently

151 At a meeting on August 30, 1972, to review this paper, General Counsel Goldman expressed the opinion that some mention of the noncopyrightability of the material under discussion should be included in the Regulations as authority for Office rejections. He suggested that the Regulation in question be reviewed following the drafting of new

Office practices.

under active consideration in the Copyright Office. The Copyright Office has held hearings on proposed changes in typeface copyright regulations.

On January 7 the AIGA sponsored an open forum to air the various viewpoints. There was active audience participation by AIGA members and guests. This Statement of Position is an outgrowth of that meeting. It has been sent to Ms. Barbara Ringer, Register of Copyrights, and is for immediate release. att: AIGA Statement of Position regarding copyright of typefaces.

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STATEMENT OF POSITION-TYPE FACE DESIGN PROTECTION-THE AMERICAN INSTITUTE OF GRAPHIC ARTS, BY KARL FINK, PRESIDENT

The American Institute of Graphic Arts numbers among its 1700 members both typeface designers and typographic consumers-graphic designers and graphics production people who design with and specify typography. In the current controversy over type design protection, the Institute has two concerns:

1. To exercise its influence and offer help to seek a solution which will, insofar as possible, serve the needs of the graphic arts professions.

2. To help create a climate in which type designers can work both creatively and with adequate recompense and in which graphic designers can be free to select type faces on the basis of appropriateness and aesthetic considerations without fear of legal entanglement.

AIGA is composed largely of creative people working in graphic communication, publishing, advertising, promotion, signage and other manifestations of visible language a broad representation of the users of typography.

To us, type is a vital part of the communications process. It is a means of creative expression. In our opinion, the outcome of current discussions will be an important factor in determining the future visual quality of American communication. It will most assuredly influence the future of typographic design in this country. It can help create conditions that nurture and support creativity or conditions that stifle creative thinking, experiment and innovation.

Most of us in AIGA know a great deal about type and its uses and little about legislation and its enforcement. Accordingly, in stating our views on the matter of type design protection, we will stick to our own area of expertise. We will state our needs, express our opinions on what is best in the way of a climate for producing good work, voice our concerns, points to pitfalls, and mention moves we believe would be detrimental. We make no recommendations as to what legislation or other governmental action will best achieve our goals.

However, we will, if asked, supply information and advice to legislators and Copyright Office personnel, will work with them in developing a system that satisfies the needs of graphic designers; we will lend our support to rulings or legislation which is consistent with those needs.

A typeface is a unique creative work which merits government protection against unauthorized copying. It is as deserving of such protection as a novel, a poem, a song or a drawing. After examining the options, we think that it can fall within the purview of amended Copyright Office regulations. But we prefer to state conditions and let others decide how best to do it:

1. We would like to see universal licensing of typefaces to all legitimate manufacturers. We consider it healthy to have type faces obtainable from more than one source, provided there is good quality control. Because type face designs are unique, they must be meticulously and accurately reproduced. Their extension to matrixes or grids 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.

2. Because type faces are designed-and selected-by name, AIGA feels that any copyright or design protection system must cover both design and name. AIGA welcomes licensing of type designs among a number of marketers. However, for the protection of users of type, we believe that the name for a type face must be recognizable and that the configuration of the type to which the name is assigned must be constant. Name and design should not be separable.

3. We are told that a possible effect of a change in copyright office regulationsalbeit a remote one-might be that an injunction could be obtained against printing of a book because the type in which it is set is of questionable origin-an

unauthorized copy of a protected face. The author, publisher and printer would thereby become victims and suffer financial loss in a dispute between marketers of type fonts. We also understand that specific legislation could preclude such a circumstance.

Should typefaces become copyrightable, we feel there exists a temporary solution to this problem: book manufacturers could simply limit their designers and printers to use of type faces in the public domain-all faces that were standard prior to a change in regulations—until any danger of disruption of production schedules is eliminated by legislation.

4. AIGA wants to be certain that the costs of type composition remain 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. Moreover, we would oppose any change which placed restrictions for use of composed letters on the graphic designer, who must be free to alter or adapt as special graphic needs dictate.

5. There are obvious problems in determining whether a specific type face is, in fact, sufficiently original to merit granting of a copyright or in determining whether a type face is sufficiently like another to constitute an infringement of copyright. The differences which distinguish one type face from another are often subtle or minute; they might well seem insignificant to the layman. Yet these differences often prompt a designer to specify one face and reject another that seems almost the same.

To overcome this difficulty, and to minimize the amount of litigation that will inevitably result from copyrighting of type faces, AIGA recommends formation of an advisory group of typeface experts-specialists who understand the significance, or lack of significance, of differences in letter forms. This typographic panel could have several functions:

a. To serve as an advisory group to the U.S. Copyright Office and to legislators in promulgating effective typographic design protection laws and regulations. b. To help establish criteria of originality (not aesthetic value) by when copyrightability or protectability of type faces can be determined on a regular basis. o. To clarify, mediate or arbitrate disputes involving typeface designs. To serve as experts in mediation, arbitration or litigation.

We believe that an effective system of type design protection will foster more and better type design in this country. Arguments to the contrary seem to stem from fear and from the automatic tendency of business to resist assignment of additional powers to government bureaus. While the process of protection will require study and periodic refinement, we believe it will turn some fine American designers toward a challenging area in which they have not been able to afford to work of recent years. This will almost automatically follow when type designers are paid for their effort in proportion to the success of their product.

Now on

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EXHIBIT F

Margenthaler

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