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COUNSELORS AT LAW,

New York, N.Y., July 18, 1975. Hon. ROBERT W. KASTEN MEIER, Room 2232, Rayburn House Office Building, Washington, D.C.

DEAR MR. KASTENMEIER: I want to thank you and the other members of the Committee for the opportunity to present our views on the typeface issue during the hearings conducted on July 17, 1975.

At the end of my testimony, you inquired whether Mr. Irwin Karp of the authors League of America and Mr. Alan Latman, in their testimony at the November 6, 1974 hearings before the Copyright Office, merely expressed opposition to change of the Copyright Office Regulations, or whether they also spoke against creation of exclusive rights in typeface designs under the Copyright Laws generally.

I have reviewed the transcript of their testimony and enclose a copy for your use. It seems clear to me that both Mr. Karp and Mr. Latman opposed the creation of exclusive rights in typefaces under the Copyright Laws, whether effectuated by regulation or legislative action. From their statements, this would include Title I of H.R. 2223.

Specifically, Mr. Karp stated at page 83 of the enclosed text:

"The League believes that type designs and fonts for the printing of books and magazines do not, and by their nature cannot, meet the requirements of copyrightability. The extension of protection to these tools of book publishing would be self defeating, creating unacceptable risks in the use of any variations from the countless presently available designs which are in the public domain."

Mr. Latman stated, at page 99 of the enclosed text:

"My clients share my view that creative designing deserves its reward, and that very often federal statutory protection is necessary to achieve that reward. At the same time, my clients and I believe that copyright is not the proper vehicle for protection of type face designs, and that the established practice of the Copyright Office is well-founded."

I do not believe that Mr. Karp addressed himself to the inclusion of typeface designs under potential design legislation (such as Title II of H.R. 2223). I read Mr. Latman's comments as suggesting that Title II would be the appropriate place to consider this issue.

Again, I cannot purport to speak for Mr. Karp or Mr. Latman, and urge that you read their own statements.

I am taking the liberty of forwarding a copy of this letter to the other members of the Committee and counsel in the hope that this clarifies the point which you raised. Very truly yours,

DANIEL EBENSTEIN. EXCERPTS FROM NOVEMBER 6, 1974, COPYRIGHT OFFICE HEARINGS Mr. Solo. Yes, you are right when you say I am pushing design patents. I feel that they have not been explored to the fullest.

Ms. RINGER. My final question is, have you looked at the design legislation that was evolved several years ago and is now hooked onto the Copyright Revision Bill?

Mr. Solo. Yes, but it's only hooked onto the bill, it doesn't exist. And who knows when the bill is going to be passed. Yes, that design legislation I find very interesting, and probably is the answer. But all of these same points about examination and classification and the availability of public search and so on, still apply. I think, to the design bill. I mean, there would be the same problems.

Ms. RINGER. I think that's probably true.

Mr. Solo. So I suppose that really is the thrust of my argument, and I would push for design patent protection.

Ms. RINGER. Thank you. The next witness is Irwin Karp of the Authors League of America. We will go on until 1:00. We're about a half hour behind our schedule, but perhaps we'll want to go on.

Mr. KARP. Miss Ringer, my name is Irwin Karp and I am counsel for the Authors League of America, which is a national society of professional writers and dramatists. The Authors League opposes the proposed amendment to the Reg

ulations governing the resignation of type faces, fonts, and typography as promulgated in your notice of proposed rule making. The League urges the Copyright Office to retain present Regulations and your interpretation of them, which have been in effect (the Regulations) for at least 18 years, and reflect the practice of even longer standing.

The Regulation prohibits the registration of mere variations in typographic ornamentation, lettering and coloring, and as the Regulation has been interpreted by the Copyright Office, it prohibits the registration of faces and fonts generally, and certainly those used for ordinary publishing of books and journals. At the outset may I note that I can't apologize as my distinguished colleague Mr. Wasserstrom did for repetition because I have the horrible feeling that repetition is one of the few forensic tools left for us in this area.

Here we have a very sound study completed by the Copyright Office only two years ago, after all the relevant cases were decided, which concluded with, I think, unanswerable logic that the Regulations are correct and at best subject to only modest modification. We have a whole file of studies prior to that made by Mr. Strauss and other distinguished scholars, and yet you've got us back at the board here. What else can we do but repeat, is a question which I find difficult to answer. And I learn that now you're having the author of the last memorandum rewrite it and take the other side, which is an exercise in logic and perhaps in legal training—but I'm not sure it is sound administrative practice.

In any event, we submit that the registration should not be allowed for, (and I repeat this only for the purpose of making the distinctions which Ms. Oler made, and which you pointed out again, Barbara) type face in the sense of design of an individual letter, type font, the assortment of types of one size or style, or for the typography in the sense of arrangement on the printed page. The League believes that type designs and fonts for the printing of books and magazines do not, and by their nature cannot, meet the requirements for copyrightability. The extension of protection to these tools of book publishing would be self defeating, creating unacceptable risks in the use of any variations from the countless presently available designs which are in the public domain.

We also be ieve that if any change ultimately ought to be made in the status of publishing typography-font and face-it should certainly not be done by the inflexible method of change in your registration regulations. Neither you or the regulations have the capacity to cope with multitudinous problems that would be created, some of which were so plainly and effectively illustrated by Mr. Solo just a moment ago.

You are not a legislator. You can only say yes or no. Register or not register. And you can't mediate or modify the impact of that absolute judgment on many industries and the whole process of disseminating information and culture in this country.

Why do we contend that typography, especially publishing typography is not copyrightable? First, the studies made for the Copyright Office, to which I referred, concluded that ordinary type face and fonts are not copyrightable material under the present copyright law. We think these conclusions are correct. There are no authoritative decisions holding otherwise. As Mr. Strauss noted, the primary function of publishing type face is to present the text of a book or article in a readable form. The design of letters in any font used for publishing does not have an aesthetic function or independent standing as a work of art separate from that primary function of conveying the author's work, his sentences and paragraphs, his ideas and expressions.

Indeed as Mr. Strauss and Ms. Oler note, type that has sufficient decorative value to stand separately as works of art probably could not be legible enough for use in books intended to be read, nor as Ms. Oler has pointed out, could they probably be produced by modern methods. Encyclopaedia Britannica put it this way: "Typography is the art of printing. It has as its first object not ornament but utility. The printer must never distract, even with beauty, the reader from his text. In the printing of books there is less room for individuality of style than in the typography of propaganda.” I assume by propaganda the Britannica probably meant advertising.

I might also note, since we're prone to talk about cases, that a functional analysis is not something strange to the Supreme Court of the United States. The Supreme Court recently made a functional analysis in the case of United Artists v. Teleprompter. I would daresay that were your Regulations changed and challenged, as they undoubtedly would be, and we ended up in the Supreme Court,

I wouldn't be surprised to find the court citing the United Artists case and asking you what you thought you were doing in the first place.

Publishing type designs are not independent works of art, not those created for publishing books, or articles in journals, or any other printed material. They are not created for the purpose of existing as works of art, and they are not "consumed" as such by their audiences. Nobody buys a textbook because it is printed in Bodoni rather than Baskerville. Nobody buys Heller's latest novel rather than Mary McCarthy's because one is set in Caledonia and the other in Cheltenham. If a reader wants Robert Lowell's latest book of verse, they will buy it regardless of which of the innumerable clear and beautiful variations on public domain designs are used in its composition. That is the functional analysis which Mr. Solo, I think, was trying to make for you.

The Mergenthaler Company and other proponents of registration are not seeking to protect type designs which are created to hang on museum walls. They are not trying to prevent other people from reproducing copies to hang on other museum walls. What they seek is a new power, not heretofore granted by the courts or the Regulations, to prevent others from printing books with the 26 let. ters of the alphabet, in a particular variation they claim to have "created". What is probably really at stake here is an effort by one group of powerful competitors to foreclose competition in the providing of printing services and production by its competitors.

The design of publishing type faces does not involve the authorship or originality required by the Copyright Act. The so-called new type face design is inevitably based on variations on one of the most fundamental of public domain properties, the alphabet. We doubt that the courts would allow the Copyright Office to impose obstacles on the use of that public domain asset. The accumulation of type face designs in the last few years, all in the public domain, make it even more improbable that the courts would grant copyright protection to these presentations of the alphabet which inevitably bear strong resemblances to some of the infinite varieties of type face already in the public domain. All of which, if they are to be used for printing, must depict in recognizable form the letters A, B, C, et cetera.

Variations of allegedly new designs will inevitably be so trivial as to affront the courts and to burden the Copyright Office with an impossible task of examination. Will a short serif in place of a long one be sufficient variation from ser. eral existing designs to entitle the "new" design to protectionism? If the new design varies from existing designs only in the placement of cross strokes, high instead of middle, or the length of ascenders or descenders, will that support reg. istration or will that justify validity in court, where the question would ultimately have to be decided ?

It is argued that the design of publishing type faces requires skill and an investment of money, hence it is entitled to copyright protection. By many other contributions to literature, art, scholarship and the film, to cite a few of the media, also require skill, talent, the risk of funds, and are not copyrightable. The crafting of quality paper and ink for example is also a labor involving these elements, yet these other tools for publishing copyrighted books are not in themselves copyrightable.

The most valuable contributions made by the greatest writers are the ideas they introduce for the first time in their works. Yet ideas are not copyrightable, no matter how much talent, indeed genius, was required to produce them. The facts uncovered by skilled, painstaking research, often at considerable expense, cannot be protected from use by others under the Copyright Act. They are not copyrightable.

The copyrighted films of D. W. Griffith and other great innovators presented to the public and other film makers techniques of the greatest artistic and commercial value. The close up, the montage, the cut and the dissolve, each was a brilliant, innovative, film technique. These were great artistic conceptions recorded on film, not ephemeral. Yet each new film technique was the product of skill, imagination and creative effort of the highest order. None is copyrightable.

There are many other examples. Joyce created a new technique for communicating literary experience and expression, the stream of consciousness. It is not protected by his copyright on Uly88es. Sherwood Anderson or Gertrude Stein or Ernest Hemingway, depending on your choice of critics, brought a revolution in the writing of dialogue. Despite the talent which was required to reshape literary technique, none of them could use the copyrights on their works to prevent other authors from copying detail for detail these techniques.

Our second point: The registration of type face designs is an almost obvious self-defeating step which would create unacceptable risks in departing from the large pie of public domain designs. By this I mean that if the purpose of registering, and thus giving the Copyright Office's imprimatur of copyrightability to new publishing type face designs, is to encourage the creation of new designs by the various companies and designers competing in the marketplace; registration will not have that effect. Not, certainly, in the field of book publishing.

In reality, registration will have the opposite effect, with the possible exception of a very few large and powerful firms enjoying a dominant position in the industry. Where they can use that power to profit from your amendment of these Regulations.

In recent years there has been an enormous increase in the number of type face designs. Accomplished, it should be noted, without the benefit of Copyright Office registration or copyright protection. A 1952 text says almost 1500 faces of type are in general use in the United States. In his monograph on the printing industry, a recent publication, Victor Strauss noted : “no single printing plant can afford a full stock of all available types, nor would any individual plant have sufficient demand for the thousands of individual faces and sizes in which type comes." The point is obvious.

From this vast reserve of public domain faces and sizes, any book publisher can select a great variety of unprotected designs to meet every conceivable need. These can provide legible, handsome type for every taste, and given the secondary and purely functional purpose of type face, there would be no compelling need for a publisher, or his printer, to commission new designs. In fact, I might note that there are substantial economic reasons right now why they shouldn't.

But in any event, in the face of these considerations, your recognition of copyright protection in allegedly new designs for publishing type faces, would surely stifle their development. Why should a publisher risk the "opulence of retribution," as Judge Dowling put it in a recent case, by indulging the commission of a new design? Why should he do this when it would open the door to the possibility of an infringement suit with the consequent costs and burdens, even if successfully defended ? No less the threat of the panoply of remedies if he should lose.

If a new design is used, then some other outraged designer or powerful competitor may claim that his copyrighted design has been infringed, pointing to similarities of serif, width of characters, weight of face, length of ascenders and descenders, or the placing of cross strokes. The suit may be brought in good faith, based on the imagined or actual similarities, both of which probably derive on both sides from existing public domain design. But access and similarity are enough to put the publisher to the costs and burdens of suit, preparation of pleading, motions, pretrial proceedings and the like, even though they may ultimately prevail.

All of this would be avoided if the publisher simply chooses one of the unlimited number of suitable and well known designs already in the public domain. Moreover, the publisher avoids any risk of damages by completely eschewing new designs, and sticking to the public domain faces. Finally, and this is most important to authors, both the publisher and the author avoid the horrible risk that the publisher's designer has consciously or unconsciously-and it can happen unconsciously with the same legal consequences-committed infringement in the creation of the design. That could lead to the issuance of an injunction against the further distribution of the book and its infringing type face, and indeed to the destruction of all existing copies produced by the publisher in all innocence and at great expense.

Authors could not afford this state of affairs. And all of these risks could be avoided by not commissioning the creation of any new type face in the publication of any book or journal, and in using safe public domain designs, drawing on that vast and varied reservoir we already have. I can tell you that any author with half a brain in his head would insist, by contract, that his publisher commit himself not to use any new type face were these Regulations adopted. The risks are simply so overbalanced and unacceptable as to make it sheer stupidity to do otherwise.

Considering that the type face is not what the publisher is seeking to sell, or the publisher is buying in the case of the book, there is no reason to accept these risks. Type face is merely one of the tools used to communicate the work itself, the author's book. The publisher has to assume the risk of infringement on the text of a book, otherwise he can't publish it. But he doesn't have to assume the risk of infringement on the type face, he can publish the book without doing that.

In sum, on this point, I repeat (and I don't apologize for repeating because I think it needs repeating many, many times before you finish considering this proposed rulemaking), there will be precious few new designs used in the type of books and journals, or other published works, if your Office adopts the proposed amendment and the courts were erer to validate it.

I am deeply concerned by the rulemaking process because from my own bitter experience in the past in litigation, I know that the Copyright Office Regulations are wrong as they can be, and I think some of them are very wrong as in the case of the manufacturing clause, are self-fulfilling prophesies. This is a result of the unfortunate fact that the courts are often too lazy to study the law themselves. and bound to accept-not bound, but tend to sometimes accept what you people say the law is. I only wish that you had displayed some of the persistence and inrestment of energy that you're displayed here in restudying your position on the manufacturing clause. You would have done a lot more for the cause of creativits in this country.

Our next point concerns the impossible task of examining. We're already noted the vast panopls of existing type face designs in the public domain. The Cops. right Office proposes to examine applications for registration of new designs. The rule making seems to suggest it may, and as Jr. Solo points out, it probably should. It faces an impossible and costly task. We would be less concerned about this aspect of the problem were it not for the Copyright Office's intention to make authors pay for the escalating costs of its operations, through onerous and unfair increases in registration and renewal fees. These increases which you are demanding of the Congress, in bills you're introduced in both houses, will fall most heavily on poets, short story writers and authors of articles, and of other works who must register and renew many separate copyrights and short pieces every year.

The amendment of the Regulations, as I pointed out, is a completely unsuitable means of changing the status of type face designs. Under its Regulations the Copyright Office can really only recognize that a work is copyrightable or not copyrightable. If it chooses to recognize the copyrightability, it cannot prescribe substantire conditions for protection, or change rights and remedies granted by the Copyright Act. If type face designs are recognized as copyrightable, the proprietors of those copyrights would be entitled to enjoin publication or further distribution of the book set in the infringing type, even though the author, the proprietor of the copyright in the text, and the publisher had no connection with the making of the design or eren its choice.

Copyright Office Regulations cannot prerent these remedies from being imposed, if the typeface is copyrightable or the registrations recognize it as such. The Copyright Office simply cannot assure authors that suits will not be brought. or that courts would not grant these remedies once they're accepted. All the protestations which you have repeated on behalf of those proposing the amendment, that no one would ever think of suing are only ridiculous. Anybody who has read the history of copyright litigation knows that plenty of people of good faith bring copyright suits, and I daresa y had we recorded their conversations in proceedings such as these before copyrights were extended in a particular medium, we would have heard similar protestations.

In any event, legislation isn't written on the professions of bona fide good will on the part of those who seek a power. If they're not going to exercise the power. why do they want it? Obriously it's sought in order to be implemented, and it will be implemented by litigation and by the imposition of these remedies.

In short, if the courts (should you proceed with your determination to change the Regulations) accept the Copyright Office's opinion-eren though it were erroneous—that typeface had suddenly transformed itself into a copyrightable material, authors and publishers would be faced with serious risks which they would have to avoid by a very simple form of insurance which totalls destross the whole purpose for which it is alleged that registration is now sought-namely encouragement of new design.

Finally, I'll make this very brief comment. If the Copyright Office rererses its present interpretation and Regulations, and now holds that typeface and type fonts are registrable, copyrighted material, we assume it would then hare to take the position that works which had entered the public domain could not be duplicated by the unauthorized offsetting or photocopying of ans edition which was set in a typeface design protected by copyright. In other words, although the copy

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