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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 ever 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 investment of energy that you've displayed here in restudying your position on the manufacturing clause. You would have done a lot more for the cause of creativity in this country.

Our next point concerns the impossible task of examining. We've already noted the vast panoply of existing type face designs in the public domain. The Copyright Office proposes to examine applications for registration of new designs. The rule making seems to suggest it may, and as Mr. 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've 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 substantive 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 even its choice.

Copyright Office Regulations cannot prevent 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 daresay 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 goodwill on the part of those who seek a power. If they're not going to exercise the power. why do they want it? Obviously 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-even 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 totally destroys 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 reverses its present interpretation and Regulations, and now holds that typeface and type fonts are registrable, copyrighted material, we assume it would then have to take the position that works which had entered the public domain could not be duplicated by the unauthorized offsetting or photocopying of any edition which was set in a typeface design protected by copyright. In other words, although the copy

right on the text had expired, if the copyright on the typeface remained in effect. appropriation of that typeface by photocopying or offsetting would be copyright infringement.

We look forward with the keenest interest to the dialogue on this question between the Copyright Office and the National Education Association, the American Library Association, and the Association of Research Libraries. Thank you very much.

Ms. RINGER. Thank you. I hope you will send us the text of your prepared statement.

Mr. KARP. Yes.

MS. RINGER. This will help us in transcribing. I think the only point I want to make is with respect to the revision of regulations in general. It is very difficult to change regulations once they have been in effect for some time, and yet it is sometimes imperative to do so. There are areas where the law does change, and where the regulations have to change with the law. I would suggest to you in the strongest possible terms and I would make this same comment to the entire room, that if you disagree with our regulations in any area, the very thing to do is to challenge them and ask that we review them. Specifically, I would welcome a challenge in the area of the manufacturing clause.

Mr. KARP. We certainly take that advice seriously. Let me say one thing about your comment on changing Regulations and the need to modify them.

You obviously are involved with a very serious collection of substantive questions. Now, these questions existed, if they existed, since 1967. From 1967 to 1974 is a period of seven years, and this was ample time in which the problem could have been brought before the Judiciary Committees of the House of Representatives and the United States Senate, which as you probably are aware, were engaged in a study of the Copyright Act and its revisions.

Now, certainly something of this major importance was worth calling to the attention of those committees as they engaged in the task of changing the law. In fact, it's not too late for you to avoid the difficulties of this administrative action, which I don't think is required in any event. by taking the problem to Mr. Kastenmeier and Senator McClellan saying: "Look, I forgot about this one; here's another problem. Do you or do you not think this type of stuff ought to be protected by copyright?" Then we and Mergenthaler Company can argue it out before the Judiciary Committee. You will be relieved of all of these problems and all of this time consuming process, and the Congress which is really supposed to make the law-and what you're doing is making law here can take the job in their hands as they go about remaking the rest of the copyright law. MS. RINGER. I don't essentially disagree with you; in fact I think I fundamentally agree with you. I would ask you, in return what is your feeling about the design bill in this connection? I think that inevitably we will have to discuss both type face designs and design protection generally in the context of the revision of the copyright law.

Mr. KARP. Oh I don't mean to duck the question and I'm not going to. I would rather leave to the gentleman who will follow me, who is an expert on the subject, an analysis of the design bill. He's the tall one with the beard. What I will say is I don't think that any provision of any law should permit a man who creates the 3,472nd variation on the alphabet in common use in this country, to prevent others from publishing books by law suits because he claims that they copied their variation from his variation.

MS. RINGER. Thank you. It's ten till one, and I'll leave it to the next speaker, who is Alan Latman, whether he'd like to start and break after ten minutes, or whether we might break now and return at ten till two. All right, let's stop, and let's try really to get back and started by 10 of 2:00.

LUNCHEON RECESS

MS. RINGER. The room has been rearranged a bit in the hope that you'll be able to hear and see us better. We're putting the speaker at the end of the table now in that he or she will be speaking more directly to the room.

The next speakers will be, in this order: Alan Latman, Warren King, John Schaedler, Fulton Brylawski, Howard Rockman and Henry Leeds. Mr. Leeds has asked that we break at the end of his presentation so that equipment, the projectors and screens, can be set up. After him will come Matthew Carter, Sandi Quinn, Joseph Gastell, Edward Rondthaler, and Mike Parker. Mr. Ephram Benguiat asked to be knocked off of the list since his points had been covered.

If there is anybody else who wants to speak, please let the receptionist know, and we'll work you in at the end. I think we can probably get done by 5:30 under this schedule; let's hope so. Okay, Mr. Latman.

Mr. LATMAN. I guess I'm the tall guy with the beard. My name is Alan Latman, I'm a member of the New York City Law Firm of Cowan, Liebowitz and Latman. And although I am expressing my own views on the copyright question raised by the Register, I represent two associations today. These are the International Typographic Composition Association and the Advertising Typographers of America, Inc. The combined membership of this group is about 350 small commercial and advertising typographers throughout the country. I say small, because I understand the average is well under $1,000,000 in sales each year of the member companies.

My clients, who have been referred to generically this morning, are the "man in the middle." As typographers they buy type fonts, traditionally from the same people who sell them typesetting equipment, to service graphic arts users, such as advertising agencies, publishers, printers, public institutions, any disseminators of the printed word, and indeed, the public and industry in general.

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.

As the Register noted, this is the first occasion on which the views of interested persons have been solicited in a more or less formal setting on a question of Copyright Office practice. To the extent that this affords the Register an opportunity to get a broader spectrum of views, this is of course to be commended.

On the other hand, the Register may have already come to feel like the 6th grader asked to give a book report on the book about penguins, who says: "This book tells you more about penguins than you want to know."

What I'm really suggesting is that in raising the issues that have been raised by any proposed change of these Regulations, there are legitimately raised issues of economics, special antitrust considerations, compulsory licenses and things too fearsome to mention. I have no particular expertise in either the technical or the economic aspects of typography. I will accordingly focus on the matters within my experience, namely copyright principles particularly in the works of art field. I will, as I warned Dorothy Schrader I might do, and in the tradition of televised activity recently, yield five minutes if I may to Mr. Walter Dew, the Executive Director of the Advertising Typographers Association, who will explain, I hope, in a five minute nutshell why my clients are here, and why my views on copyright coincide with their views on the realities of the marketplace.

I am accompanied not only by Mr. Dew but by Mr. Charles Mulliken, who's the Executive Secretary of the International Typographic Composition Association, Mr. Charles Moore, immediate Past President of the Advertising Typographers Association, and Mr. Gordon La Fleur, who is the President of the International Typographic Composition Association—all of whom are available if questions on the technical aspects of typography or economic aspects are required. Also we will undoubtedly take advantage of an opportunity to submit some written views, if it appears appropriate.

As the Register knows, my interest and involvement in the field of protection for creativity in designs dates back 20 years. This interest for a number of years centered about my role as counsel for the National Committee for Effective Design Legislation, an inter-industry group of designers and manufacturers and their respective associations seeking new federal legislation protecting designs against piracy. The efforts of this committee are indeed embodied in the bill referred to this morning, Title III of S. 1361, passed by the Senate two months ago and currently pending before the House of Representatives. This bill represents, in my view, the best thinking on an equitable and yet effective system of statutory protection for designs of useful articles.

Now, of course, this morning I have not heard any of the proponents testify orally. I have seen some of their letters and statements in favor of a change in Copyright Office practice. From what I've seen, the proponents of change today are really here for the same reason that the National Committee for Executive Design Legislation went to Congress. The reason was and is that the copyright law as we know it simply does not cover all designs of useful articles, even all creative ones.

There is, I have to interject, an interesting difference in the lineup of people involved in the broad design efforts that I've referred to and in the efforts today. That is, without beating this to the ground, despite being a tall guy I was a David really, or representing David against Goliath in terms of seeking protection. It was the small people in every industry who came forward, and it was the big people in every industry who tried to stem the tide. Now, apparently the situation is somewhat changed today, and the proponents certainly are not the little fellow.

Without suggesting that the Register should make up her mind on the basis of who testifies and says what, I think the Register will agree that nobody in this country has been more sensitive to the needs of creative people, no matter what form, no matter how subtle the need, than Irwin Karp, and no society more vigilant than the Authors League of America. So I find it extremely significant that Irwin and the society, far from even remaining neutral on this issue (which would normally surprise me if the rights of creators are involved), comes in and effectively testifies against the change.

I said before that the design bill recognized the fact that not all designs are covered. I parenthetically note something else which the Register is aware of, and that is that those relatively few designs of useful articles, which do somehow or other qualify as works of art, probably would get excessive protection or inappropriate protection. So the National Commtitee for Effective Design Legislation became convinced that a change in legislation was needed, and I frankly think that today's proponents must follow the same route.

Indeed, I think that the special circumstances surrounding this particular type of design make this particular type of design the least likely candidate I can think of for any preferred treatment in the copyright law. Some of the reasons have already been stated; I will just briefly note them. First, the function of type face designs and the constraints resulting from that function. Secondly, the fact that the ordinary observer, the cherished individual under copyright law, is generally incapable or uninterested in making the kinds of visual or aesthetic distinctions that are implicit in a copyright system.

Notwithstanding my disclaimer of expertise in the field, there are two facts which are apparently uncontroverted, and which are so glaring and so unique that I think I ought to mention them. One is, as already mentioned even by me, that type fonts are traditionally sold only by the manufacturers of the equipment on which they're used. And secondly, that type fonts are not interchangeable or compatible on different equipment. Maybe I'm too traditional in my views on copyright, but in stretching for an analogy I suppose I would think of a situation where let's say a phonograph record could only be played on the equipment of a particular manufacturer. A copyright on the song would therefore have meaning only if that manufacturer were to decide to put the song out in that record.

Now, if one of the many close students of copyright in the room quarrel with my analogy and say, ah hah, but there's compulsory license in records, then I'm reminded of something else which I hope is not name calling. Going through my mind this morning with the references, particularly Mr. Ebenstein's references, to some of the forces at work in this thing, somehow the name Aeolian Company came into my head-the company which, as everyone knows, was involved in a concentration of music copyrights back in 1909. So I think maybe the analogy does stick.

In order to perhaps give the rationale for my thinking. I'll be obedient and answer the five questions in the notice of proposed rulemaking. The first is 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 Copyright Office's attempt to construe the statutory term works of art, particularly as embodied in useful articles, which is the sticky area. is found in section 202.10 of the Regulations. Now, as correctly noted, in question one, and I don't think controverted, although we have yet to hear all witnesses, I think that type fonts are useful articles.

They function as mechanical contrivances to produce legible, effective words on a printed page. Question one seems to me to echo subsection (c) of the Regulation which Mr. Ebenstein read this morning. It is in this subsection which the Office very bravely attempts to draw the line between works of art deemed copyrightable, and other designs which, though attractive are deemed not copyrightable. The hallmark to protectibility of shapes of useful articles is the in

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