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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 benest interest to the dialogue on this question between the Copsright 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.
Jr. KARP. Yes.
Ms. RINGER. This will help us in transcribing. I think the only point I want to make is with respect to the rerision of regulations in general. It is rery 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 rery 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 obriously are involved with a very serious collection of substantire questions. Now, these questions existed, if they esisted, since 1967. From 1967 to 1974 is a period of seren years, and this was ample time in which the problem could hare been brought before the Judiciary Committees of the House of Representatires and the United States Senate, which as you probably are aware, were engaged in a study of the Copyright Act and its rerisions.
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 erent, by taking the problem to Jr. 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 reliered 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.
Js. 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 revi. sion of the copyright law.
Ur. KABP. Oh I don't mean to duck the question and I'm not going to. I would rather leare 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.
Js. RiXGER. 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.
Ms. RiXGER. 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. Jr. 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 esplain, 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 re quired. 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 sears 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 todas 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 Darid 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 eren 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.
Xow, 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
corporation of "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.” Again, it is difficult for me to think of any situation which fits this description less than type fonts, where the design elements are inextricably connected to the utility of the font in producing effective typesomething illustrated by earlier speakers.
More independence of appearance can be found, also as expressed by Jim Silberman, in the shape of a piece of Jensen silverware for example, or an Eames chair, or a Vacheron watch. However, none of these presumably is a work of art within the scope of the present law. None of them, in the words of the Rosenthal v. Stein case, “appears to be within the historical and ordinary conception of the term art.” This definition of course was the one that the District of Columbia Court of Appeals chose to apply in Bailie & Fiddler v. Fisher when it held that a phonograph record in the shape of a five pointed star is not a work of art.
I would suggest that the shape of a letter of the alphabet is no more "art" than a five pointed star. And although the notice in the Federal Register referred to recent judicial developments, I do say quite candidly that I am not aware of any cases that have significantly altered this approach. Since I'm not really even sure exactly what developments are being referred to, I would appreciate the opportunity to learn what they are and to have a chance to respond and comment on them.
The second question is the distinctions, if any, between calligraphy, ornamental lettering and type face designs for copyright purposes. “Ornamental lettering" presumably involves pictorial or sculptural features which are separately identifiable and capable of independent existence as a work of art under the standards which I mentioned earlier. It therefore would be, I think, in sharp contrast to ordinary typeface designs and ornamental lettering may often be copyrightable. I understand, however, that it is impractical to create and/or market a typeface design consisting of ornamental lettering and that, accordingly, the problem is not a pressing one. But any way, that is my view on it. I may be wrong on that.
I'm also not sure what is meant by the term "calligraphy" and I'm delighted to notice that a calligrapher is on the program for today. It had always occurred to me that calligraphy connoted beautiful handwriting. In the absence of handdrawn, ornamental lettering, I would think even beautifully shaped handwriting is not really copyrightable but I would like to give this matter further thought if it is deemed of continuing importance.
Question three: whether a typeface design can by its nature incorporate the degree of originality and creativity necessary to support a copyright. This is a little related to the first question, and I think the negative answer that I gave to that first question really leads to a negative answer. “Originality" involved in producing an effective alphabet-or even just an attractive alphabet—would remind me for example of the effort to produce an effective fleurs-de-lis design for a label. As the Register knows, this effort was found to lack originality, in Forstmann Woolen Co. v. J.W. Mays, Inc. [89 F. Supp. 964 (E.D.N.Y. 1950)).
It is the nature and function of typeface designs, highlighted by Mr. Solo, as well as the experience of the Office, that justifies the conclusion, in Section 202.1, that "mere variations of typographical ornamentation, lettering or coloring are not subject to copyright." I think that specification is merely an example of the basic principles that are followed in $ 202.10.
When I say the function of a type face would seem to preclude copyrightable creativity, I am not suggesting that variations are impossible or attempting to demean the efforts of people like my respected neighbor from Croton-on-Hudson, N.Y., Ed Rondthaler. But what I'm saying again is that it's very difficult to think of an article whose appearance is more affected, if not dictated, by its intrinsic function than a typeface design. Maybe the elusive concept is the nature of the function, because the function itself is a visual function. I think we per. haps confuse visuality with aesthetics. The fact that it's a visual function doesn't make it an aesthetic function.
The function of type face is similar, as Irwin Karp mentioned, to the design of the finish on paper, the color of a traffic signal, the reflector on a road sign or lighting of a sculpture display-all of which are very carefully designed but without copyrightable creativity. And again, as pointed out, the very conventions that must be observed in the area of making an effectire alphabet recognizable dictate the appearance to a remarkable degree.
We are thus reminded not only of the temperature chart cases, but the printed circuit boards, which I gather you folks are still being deluged with each year, notwithstanding your policy. These are very attractive mazes. I have a very nice slide which you may have given me at one point, Barbara. I usually project that on the screen to students and ask what they think this is, and I get all sorts of projective answers. I think that a printed circuit board looks the way it looks because of the circuitry involved. Typefaces look the way they look because they're designed to produce recognizable, legible, effective alphabets.
Question four: whether for purposes of copyright registration workable standards can be established for distinguishing “new” designs, based on previously existing typefaces from mere copies or minor variants of earlier designs. I don't think that such workable standards can be established. But even more significant is the fact that the question needs to be asked. The essence of “copyright registration” as we know it precludes “distinguishing” works submitted for registration from prerious works. Thus, the question, as has been really brought home already this morning, reflects the dilemma that would confront the Office if it modified its present policy.
The Office would either have to modify its entire approach and engage in the kind of judgmental activity many people think is beyond its statutory authority, or else it would have to register claims in many designs which the Office not only suspects but really has to know essentially duplicate earlier designs. And that first horn actually has two subhorns to it, I mean do you modify your entire approach from beginning to end, or do you engage in what I think would be a very inappropriate, inelegant kind of discrimination in one particular field? I find the dilemma unthinkable-really, unanswerable.
The fifth question is, assuming the potential copyrightability of certain typeface designs, the practical means of complying with the formal requirements of the copyright law as to notice, deposit and registration. Whether practical means may be devised for complying with notice requirements depends on which school of thought defines the requirements. As pointed out in the monumental notice study, the revision study, there are two approaches. Under the more liberal ap proach, a single notice on an entire font, as it is sold, would probably be sufficient even if the notice never appeared on a printed page.
The dangers of infringement, well documented by Al Wasserstrom, Irwin Karp and others this morning, would be exacerbated in the case of such an approach in typeface designs. Again, considering the fact that works of art could be registered in unpublished form, the dangers are even greater. If the stricter approach was taken, who knows what that stricter approach would lead to. Do you need notice each time it's reproduced ? Do you need it on each character? Suppose they're rearranged, is that the same work? The fact that it would be impossible, and I'm sure the people that follow me would say that they can't do that, doesn't necessarily mean that this stricter approach wouldn't be followed. What it really illustrates is the fact that the copyright statute was nerer intended to cover typeface designs.
Deposit and registration may raise other problems centering about whether each font of a particular typeface is a separate "work." The thing that strikes me there is the fact that when you have one design you may have as many as a dozen fonts which embody that design. Thus, for each design introduced there may be a dozen different “works” which would arguably be involved, with deposits and applications for registration containing appropriate "new matter" information for each. These problems are, of course, not insurmountable. Again, however, they may well support the long-held conclusion that the statute was not intended to cover typeface designs.
I think the foregoing indicates that there really is no sound reason to change Office practice and grant registration to tyneface designs, leaving uncovered many other areas of creative design where the problems are much less formidable. I think typeface designers should join the designers of other products in supporting the Design Bill, which, in answer to the earlier question, I do think would cover some typeface designs, not all, by any means. Nor would the protection be anywhere as broad as under copyright. But that, rather than being a vice of design bill coverage. I happen to think is a virtue. The existence and progress of that Bill is merely further confirmation of my view that copyright under the present law is not the place for protection of typeface designs. If I haven't gone over my time, I would like to call on Walter Dew to join me and give his brief statement.
Mr. Dew. As Alan said, I'm Walter Derr. I am executive secretary of Advertising Typographers Association. I speak now to the economics as concern a comparatively small group of small companies who feel that the economic conse