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 perhaps 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 effective 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 previous 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 approach, 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 never 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 typeface 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 Dew. 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 57-786 76 pt. 2 34 quences of copyright would be of major importance to them—yes, even disastrous. So very briefly I would like to make the points which concern us. The point of non-compatibility between equipment has already been made several times this morning. It is important to us. A typographer, to be competitive, must have a wide range of typefaces available to service the creative demands of his clients. In most cases, it is the client and not the typographer who decides which typeface shall be used on any given job. Although the typographer is the actual purchaser of the type font from the manufacturer, the demand for new typeface is created not with the typographer, but with his client. One example: the International Type Face Corporation produces a publication called "Upper Case, Lower Case," which is a promotion piece for its faces, and I might add a very, very good one. It is sent to the typographer's clients. These are creative people in advertising agencies, studios, publishers, direct corporate accounts. The typographer's decision to buy a new typeface is determined not so much on the basis of whether it is needed to fill out his range of faces, or that it is unique, or even that it is good, but often because the demand has been created for it, with his clients. This demand he must meet if he is to stay competitive. If the manufacturer of type setting equipment, which a particular typographer might own, does not manufacture current popular faces for his equipment, that typographer finds himself with a very bad competitive position. A recent, and I might say horrid, example of this particular situation occurred in a large plant on the Eastern seaboard. Their basic photographic system was the Phototronic. Many of the most popular faces demanded by their clients were not available on the Phototronic, and as a result it was necessary to buy another type setting system, in this case Alphatype, to get the faces their clients demanded. The new equipment was not needed for production but in fact, only added to already excess capacity. The system was installed solely for the typefaces available on it; the cost-well over $60,000.00. It is the above situation that the typographic industry fears if copyright is granted to typefaces, i.e., to get a particular face or faces, one must buy a whole typesetting system, which we consider a gross economic waste. The typographer's concern is not the proliferation of new typefaces or even that the decision on what faces to have in his library rests to a large degree on his client rather than his own typographic judgment. But that popular faces might not be readily available to his system and available at competitive prices. WEIL, GOTSHAL & MANGES, Re International Typeface Corp. Mr. LEONARD STORCH, Leonard Storch Enterprises, Inc., DEAR MR. STORCH: We understand that you are considering the question of whether membership in the International Typeface Corporation could subject you to antitrust exposure. In this regard you have asked us to advise you whether the structure or conduct of the International Typeface Corporation (“ITC"), as described below, raises antitrust problems, and if so, to identify the problems involved and to comment upon potential action which might be taken against ITC or its members for any violation of the federal antitrust law. As discussed below in greater detail, and based upon the information provided to us, it appears that the activities of ITC present most serious risks of legal exposure under the federal antitrust laws for ITC itself. and for its members who participate in the activities described herein. The conduct in question could result in exposure to actions by the Department of Justice, Antitrust Division seeking an injunction and/or penalties, action by the Federal Trade Commission for an injunction, or action by private parties injured in their business or property for treble damages and/or injunctive relief. Our understanding of the facts, based on our meeting with you and the materials provided, regarding the background of the phototype setting industry, Leonard Storch Enterprises, Inc. (“Storch"), and ITC are set forth below. INDUSTRY BACKGROUND As a general matter there are two basic methods of type setting employed in printing-hot type and cold type. The former involves the forming of lead print characters utilizing large cumbersome equipment. The latter employs electronic/ photographic typesetting by the reproduction of images of typefaces taken from type fonts, which are films generally employing all letters of the alphabet, all numerals, and other symbols such as punctuation marks laid out on the film negatives. These cards, called fonts, are produced in a large number of both styles and weights. These fonts are generally utilized by typographers who operate type shops to perform type setting services, primarily for advertising agencies, graphic art studios, printers and directly to industries which need prompt printing of visual display of various typefaces to evaluate the overall composition of advertisements, etc. Typographers purchase phototype setting machines from the manufacturers who also supply fonts containing various styles of typefaces. There are hundreds of different styles of fonts in various weights, slants, and widths. In addition, fonts are not interchangeable among the various phototype setting machines produced by different manufacturers. However, as a general matter in the past, most manufacturers of phototype setting machines carry a full line of font styles. If a phototype setting machine manufacturer did not have a font for a particular style, or weight of typeface, a typographer having only that manufacturer's machine would not be able to perform the services for the customer who wanted that particular face. Over the years, it had been generally accepted in the industry, as well as specifically set forth in the regulations of the Copyright Office, that typefaces were not subject to copyright. When a new or modified typeface appeared in the inventory of a phototype setting machine manufacturer, other manufacturers generally added the face to their own inventories. Unsuccessful efforts have been made to contend either that the face, or the configuration of the letters, numerals or other printing symbols appearing on fonts were copyrighted. Although the Registrar of Copyright has expressed some interest in an argument that some copyright protection may be appropriate, no action has been taken in this area and efforts by ITC and its subscribers, described below, have mainly centered on attempting to change the copyright law to recognize typeface as a proper subject of copyright. STORCH Leonard Storch Enterprises, Inc., is a manufacturer of type fonts specifically for use on phototype setting machines produced by Alphatype Corporation. Storch has reportedly had the experience of finding potential and existing customers for its fonts for Alphatype machines unwilling and/or hesitant to deal with Storch because of the activities of the International Typeface Corporation. Typographers have indicated an unwillingness to purchase fonts for their Alphatype machines from Storch, fearing that their customers will refuse to deal with them if they utilize fonts not bearing the ITC licensed mark. We understand that such typographers have also been advised, either directly by ITC or indirectly by ITC subscribers and others in the industry, that Storch, or anyone making unauthorized use of fonts or faces offered by ITC or members of ITC, may be guilty of violations of law and could be subject to law suits, monetary judgments, and injunctions preventing them from using fonts unauthorized by ITC. Moreover, customers of Storch and others have received indications that their ability to obtain business from advertising agencies, studios, printers, etc. would be injured if they were to deal in such "unauthorized" fonts or typefaces. INTERNATIONAL TYPEFACE CORP. ITC is a corporation formed in 1970 as a joint venture between Lubalin & Burns Co., Inc., an advertising agency and graphic designer, and Photo Lettering Inc. (a subsidiary of Electrographic Corporation) which is a specialty typographer. Mr. Aaron Burns, a principal of Lubalin & Burns Co. is President of ITC. Mr. Edward Rondthaler, President of Photo Lettering Inc., is the Chairman of ITC. ITC's professed purpose is to create new typefaces and assist subscriber members in the marketing and promotion of new typefaces. In addition, ITC has been active, on the one hand, in seeking to change the copyright laws to provide for copyright protection for typefaces, and on the other hand, in claiming that typefaces are already copyrighted. For instance, ITC advertisements have contained the statements: "All ITC typefaces are fully copyrighted and their names protected. Copies of these designs obtained from sources other than ITC subscribers are unauthorized." * "ITC pays royalty fees to designers for exclusive marketing rights. Copies of these designs obtained from sources other than ITC subscribers are unauthorized." ITC advertising also contains the following statement: “Lubalin & Burns Co., Inc., and Photo Lettering Inc., founders of ITC, urge the users of ITC Souvenir [the name of an ITC typeface] to join in a worldwide campaign against unfair typeface copying practices by asking their regular type sources (type shops, printing companies, art supply stores, etc.) to purchase ITC Souvenir only from the following authorized and licensed ITC subscribers..." [list of subscribers]. In other advertising the immediately preceding statement is followed by the additional statement: “Help stamp out plagiarism. Buy ITC typefaces only from ITC Licensed Subscribers, the only manufacturers authorized to use this 'ITC LICENSED' mark . . . [mark containing words 'ITC LICENSED' appears]." The ITC contract with reproducer "licensees" of ITC typeface designs provides that: "The reproducer may produce Products [earlier defined as film fonts, grids, reels and/or matrices or metal castings] only of its own manufacture, originating its ITC Products only from artwork or drawings supplied by ITC, other than signs and specials, and may not grant or sub-license any rights granted to it hereunder, except Produce re-sale rights for distribution purposes." The term of the grant is 17 years, renewable for 17 years, provided that the reproducer is not in default. The contract provides that the typefaces remain the sole and exclusive property of ITC, subject to the rights granted. The agreement also states that "the Products of the Reproducer shall bear copyright attribution to International Typeface Corporation." We are advised that customers of ITC subscribers purchase fonts bearing ITC typefaces for approximately double the cost of non-ITC fonts of the same quality. Many of the ITC typefaces are typefaces which have previously been used and a number of them have been available for use for more than 50 years. Even ITC "created" typefaces may represent merely minor variations from previously existing typefaces used in the market. For example, the ITC Souvenir typeface referred to in the above-quoted statement is elsewhere described in ITC material as a design "based on source material" supplied by the American Type Founders Company, an ITC subscriber-i.e. it is not a newly designed typeface. ITC has in the past claimed copyright protection for the fonts, but more recently has simply required an ITC designation. Messrs. Burns and Lubalin are reportedly well known to typographers, advertising agencies, studios and printers, and, by reason of their knowledge and experience in the industry, can exercise a good deal of influence with these companies. We are advised that these individuals, others involved in ITC, and ITC subscribers have embarked on a broad scale campaign to induce typographers to purchase fonts only from ITC authorized subscribers. In addition, these individuals and subscribers have reportedly urged customers of typographers to deal only with typographers utilizing ITC authorized fonts. Conversely, typographers and their customers have been advised to refrain from dealing with suppliers who sell non-authorized ITC fonts, and with typographers who utilize non-authorized ITC fonts. In addition, ITC publishes a newspaper called "U&lc" as a promotional paper for the industry. ITC controls the distribution of “U&lc" and sells advertising space to ITC subscribers. In a letter to subscribers regarding "U&lc," the following appears: "It would be an effective tie-in for your ad to carry the ITC LICENSED logo showing you as a licensed subscriber. Sort of a 'Good Housekeeping' seal for this 'U&lc' readership." Another aspect of ITC's activities is its support for the efforts of others in the industry to prevent unauthorized reproduction of typefaces. For example, an ITC press release reports a meeting of the Type Directors Club, and a presentation by Klaus Schmidt, an advertising agency executive, in which it is reported that he stated: "Refuse to buy bootlegged faces. This means art directors, type directors, type suppliers, graphic arts professionals of all kinds. Too few people are waging the fight against the 'contact-copier' [The release states at this point that: 'these are plagiarists who, with contact printer or camera, get third generation film contacts which are offered as originals']. It isn't enough that individuals or associations work to bring order, common sense, simple ethics back into the business. We all have a stake in its future." The release goes on to state that Mr. Rondthaler, who is a principal of ITC, "supported these views.” He reportedly referred to the ITC “bug” or license mark as a "stamp of ethics." The release then states: |