Mr. DANIELSON. You snuck in a half minute each way.

Mr. WASSERSTROM. Well, I know it is awfully difficult to compress within 5 minutes what one has been saying for a long time. But may I conclude by stating in behalf of publishers: just as words are the raiment of thought, I think typeface is merely the raiment of words and should pass as freely as words do. I am talking about a readable, legible, intelligible typeface and if you were to allow copyright status to this kind of a work, you would subject the publishers to frequent and onerous demands, to the obligation of at least defending lawsuits, and the possibility of paying very substantial sums of money despite their innocence, and most importantly, to the remedy of injunctive relief for infringement; and all without commensurate social benefit. So that my submission would be that the copyright bill that we now have under consideration not be changed and under its present form it cannot accommodate, in my view of either title I or title II, these kinds of original typeface designs that we are talking about, and I also urge your committee not to open the door of copyrightability in any report that you may make on this piece of legislation.

Mr. DANIELSON. Thank you very much for your contribution. You would be surprised how much you said in 5 minutes.

[The prepared statement of Alfred H. Wasserstrom follows:]

STATEMENT OF ALFRED H. WASSERSTROM, COPYRIGHT ATTORNEY, NEW YORK, N.Y.

Mr. Chairman, distinguished members of the Subcommittee, my name is Alfred H. Wasserstom. I am a senior member of the law firm of Lipton, Wasserstrom & DeGroot of 959 Eighth Avenue, New York, New York. We are the general attorneys for The Hearst Corporation. I might add that my law firm and our predecessor firms have so represented The Hearst Corporation for more than forty years.

In passing, may I also state that I personally have for upwards of the past ten years served as Chairman of the Legal Affairs Committee (quondam the Copyright Committee) of the Magazine Publishers Association of 575 Lexington Avenue, New York, New York, which is perhaps the largest trade association of consumer magazine publishers in the United States, if not in the world. However, I am presenting this testimony today not in behalf of that Association or in the capacity of Chairman of its said Committee.

The testimony I am about to present, I submit as a lawyer who represents, and has represented for many years, The Hearst Corporation, and I appear before this distinguished Subcommittee on behalf of that publishing organization. The Hearst Corporation publishes eleven magazines, which are in the main consumer magazines, including such magazines as Good Housekeeping, Harper's Bazaar, Cosmopolitan and House Beautiful. It also publishes eight newspapers, including such newspapers as The Albany Times Union, The Baltimore News American, The San Francisco Examiner and The San Antonio Light. This corporation also publishes a series of paperback books known as Avon Books under various imprints, and it also operates King Features Syndicate, which is one of the largest newspaper syndicates of this country.

I take it that the subject of this hearing and inquiry is the possible copyrightability, in the context of basic copyright law revision (H.R. 2223), of original typeface designs and type fonts. As I understand those terms in their usual acceptations, a typeface design means the particular appearance of an individual letter or character (generally of the alphabet) in type form, and a type font means an assortment, of varying quantity, of typefaces of a particular size or style. Both the typeface and the type font are integral elements in typography, which has been accurately described as "the art of printing".

It is the typography of publishing that is my especial concern, and it is to that area that virtually all of my remarks will be confined.

At the outset, and so that my position on this issue may be made unmistakably clear, I submit that publishing or textual typefaces or fonts, even when original, should not qualify for copyright status.

Incidentally, when I was first invited to testify at this hearing, I was puzzled, and I am still perplexed, as to why a subject so particularized, one of such limited nature and reach, as original typeface designs, should become a matter of legislative inquiry. I should have thought that typefaces, even when original in a copyright sense, might more fittingly be dealt with in an administrative rather than a statutory way. I should have supposed that the proper rubric would be if the subject were to be dealt with at all-an appropriate Copyright Office Regulation under sections 701 et seq. of said H.R. 2223.

Now this basic problem of copyrightability of typeface designs is not to be addressed, I suggest, as a novel question. It comes before us freighted with history. Its contours have been shaped, and shaped recurrently, by Copyright Office concern and consideration for the past sixty-five years.

Harking back to 1910, under our existing Copyright Act of 1909, the Copyright Office has consistently refused registration to ornamental letters and typeforms as well as to "mere variations of typographic ornamentation," or "lettering". Hence, in conformity with well-settled practice under existing law, typeface designs have been denied copyright registration.

The non-registrability under our present Copyright Act (17 U.S.C.) of original typeface designs, speaking generally, can be convincingly rationalized, I submit, on the ground that such designs are composed of alphabetical letters and are primarily utilitarian objects rather than works of fine or even applied art in that their purpose is legibility or readability. Such designs basically function, and are intended to function, accordingly, as printed matter to be read and not as esthetic matter to be enjoyed.

Put another way, unless the typeface design in question in its ornamental aspect possesses not only that modicum of originality and creativity required of works of art or of at least artistic craftsmanship, but also an esthetic life of its own apart from its function as printed reading matter, it should not, I urge, be eligible for copyright as a work of applied art.

Of course, we are not concerned here with a purely ornamental design in typeface form, one that could be hung on one's wall to be viewed and reviewed with pleasure deriving from the beauty or harmony of its line, shape or shading. This kind of design, this "thing of beauty" is of no moment in publishing typography, and has nothing to do with reading matter.

However, the typeface design that is of concern to publishers and to authors of written words is the one involving the alphabet, the one that has as its essential use and purpose the intelligibility of the printed word. It is this kind of typeface design, that perforce is based upon the wealth of public domain typefaces (and which can vary from them only in such relatively trivial or minor respects lest it lose its desired utility as a recognizable word form) that has been treated as non-copyrightable under existing law and established Copyright Office practice. Should the law be changed now to allow for the copyrightability of original typeface designs? I submit, it should not.

But before discussing such possible change and its consequences, I suggest that it might be well to recall, for the sake of perspective, the following observations of T. B. Macaulay when he incisively stated in connection with a copyright duration bill then (February 5, 1841) before the House of Commons:

"*** We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. ***

"The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures *** I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax."

I suggest further that, since I oppose change in the present posture of the law, the proponents of change have the materially heavier burden to carry. I say that not to frustrate change that is desirable, but rather because change in the instant matter seems quite undesirable, especially in the light of its likely and harmful consequences to publishers, consequences without commensurate benefit to typeface designers or to the public.

Were typeface designs which are basically functional in nature, that is, those which are capable of serving (and really intended to serve) as intelligible, printed word forms, to be deemed entitled to copyright status by your Subcom

1 Macaulay, Prose and Poetry, Ed. G. M. Young, Harvard Press, pp. 734, 737.

mittee, and I trust they will not, could that be brought about without substantive change in H.R. 2223? I submit, it could not. I say that. because, although Title I contains no class covering "works of art", denominated in those precise words, there is the comparable category of "pictorial, graphic and sculptural works" found in sections 102(5) and 113 of that Title. These terms i.e., "pictorial", "graphic" and "sculptural", draw color and meaning from one another in view of their association in the single class (item 5). Furthermore, by legislative history as evidenced by Senate Report number 93-983 on S. 1361 on general copyright revision which passed the Senate last year, said section 102 (5) is intended to cover works of fine and applied art, but works of art, nonetheless. Hence, in this respect, I think we have basically a mere codification of existing law with the consequence that the same insuperable barrier exists under Title I to the copyrighting of typeface designs as exists under current law. In short, and as urged above, even under Title I, the typeface designs which possess utility and are designed to function as printed textual matter, deriving basically from the public domain (wherein it is estimated there are available thousands of typefaces and fonts developed over hundreds of years), would not, I submit, be copyrightable, despite their small, but really trivial, ornamentation or decoration. (Gardenia Flowers, Inc. v. Joseph Markovits, Inc., 280 F. Supp. 776) The ornamental or decorative features such as changes here or there in the shading or shaping of a stroke or serif or in the forming of an arch or curve in the typeface itself, would have no separable existence of their own, being merely ancillary parts of the readable typeface.

It is worthy of note that in said Senate Report anent categories of copyrightable works, no mention is made of typeface designs, although pictorial, graphic and sculptural works are therein adverted to and discussed (pp. 105 et seq, of the Report).

Furthermore, moving from individual typefaces or fonts to typography, it has been held that even especial typography of a published literary work is but a part of the literary work and will pass into the public domain when the copyright to the literary work expires. (G. Ricordi & Co. v. Haendler, 194 F. 2d, 914)

The question that next arises is whether Title II of H.R. 2223 is so worded as to subsume "original typeface designs" under "Ornamental Designs of Useful Articles". It is my submission that under the so-called design Bill i.e., Title II of H.R. 2223, typeface designs do not constitute ornamental designs of useful articles and are, therefore, not entitled to protection under the last mentioned Title. I believe that there are solid grounds for the foregoing submission, such grounds having among them the following:

A. It is the "intrinsic utilitarian function" of typeface, especially textual typeface, "to convey information";

B. Under section 202(b) a design, albeit an original one, is not entitled to protection if it is "staple or commonplace", or is a "familiar symbol", or is a "configuration which has become common, prevalent or ordinary";

C. Under the last cited section paragraph (c) a design is disentitled to protection even if it deviates from the "staple or commonplace" as well as from the other preclusive provisions of 202 (b) "only in insignificant details or in elements which are variants commonly used in relevant trades" and

D. Even if none of the foregoing preclusive provisions of section 202 apply, the design will not qualify for protection if it is "dictated solely by a utilitarian function of the article that embodies it".

An additional, if only makeweight argument, I suggest, militating against the protection of original typeface designs under Title II is that the ornamental feature of readable typeface must perforce be so quantitatively small as not to constitute the “design of a useful article". The utilitarian function of the typeface acts as a delimiting factor, operating both qualitatively and quantitatively on the design so that the latter can only comprise a small part of the typeface, otherwise the typeface loses its legibility. But for the purpose of this argument, we need only consider the size of the ornamental design vis-a-vis the entire typeface and when we do that we see, I submit, that the design can only be a small part of the article, and not of the article itself.

Furthermore, I do not believe that in any of the hearings or drafts of prior Bills dealing with the protection of ornamental designs of useful articles any mention was ever made of original typeface designs as among such ornamental designs of useful articles; such absence supports the contention, predicated upon legislative history, that typeface designs were not among the ornamental designs contemplated. So much for the present wording of Titles I and II of the said Bill now under consideration by your Subcommittee.

I urge you neither to amend Title I or Title II of H.R. 2223 so as to accommodate original typeface designs nor to write into such report on this pending legislation as you may issue any language supportive of either copyright or ornamental design protection for such typefaces. I urge that not only on behalf of publisher but also on behalf of authors because to do so would be to create an especially fertile "litigation breeder", one that would add to the occupational hazards of publishing without compensating public benefit.

As this Subcommittee is doubtless aware, the present Register of Copyrights conducted a public hearing, the first ever by anyone holding that Office, in November of 1974 on the issue of the registrability of original typeface designs. To register such designs for copyright would have necessitated a significant departure from settled Copyright Office practice, as I indicated above. At that hearing, the Register, herself, in the clear and cogent fashion that is her wont, articulated some of far-reaching problems that might well confront publishers of printed matter if original typeface designs were to become copyrightable. In that connection and at that time, the Register precisely posed the pressing question as to what extent may the holder of a typeface copyright "try to enjoin, or exact some sort of payment from a perfectly innocent publisher or author who may have happened to use a typeface design without knowing it was copyrighted" (p. 44 of transcript of said hearing). The Register then went on to say: "But fear has been expressed that this" copyrighting of typeface designs "would enable typeface designers and their assigns to exact a 'tax', or whatever you want to call it, from authors and publishers * * * to put them over the barrel if the work is published and it turns out that the copies have been printed using a ‘piractical' typeface design" (p. 45 of said transcript).

As this Subcommittee may not know, many publishers of magazines and of books do not do their own printing. Our client, who is a large magazine publisher, uses the services of an independent printer or printers for the printing of its magazines and also for the printing of its Avon Books. As I understand the practice, publishers not infrequently fail to specify the kind or type of typeface in which text matter is to be printed so that the printer, by fairly wellestablished practice, may set such text matter in the typeface that he has then on hand from the copy furnished by the publisher. The point I want to make here is that publishers rely upon printers to furnish typeface and fonts. Of course, the publisher may designate what particular style of type he wants, but absent that, he will speak only generally to the question of typeface. It may be a Gothic, Roman, Futura, Baskerville, Bookman, Bodoni, Cheltenham or Caledonia to mention but a few of the perhaps better known styles of type that are available in the public domain.

If you were to accord copyright to typeface designs of text matter, assuming originality of their ornamental features, there would be placed in the hands of copyright owners an opportunity to make egregious demands upon publishers. You would proliferate litigation because you would proliferate putative copyrights. Even if publishers were to succeed in the defense of such actions, they would still have the expense of defending the lawsuits for copyright infringement.

Quite apart from the burden of defending the copyright infringement actions, publishers who are completely innocent of, or even unconscious of, any wrongdoing, may not only be enjoined from the dissemination of their magazines and books but also amerced in damages, and all because of the relatively inconsequential ornamentation in the form of an original design of public domain typefaces and fonts. This state of affairs has the capacity for considerable mischief and serious loss not only to publishers of text matter but also to the public in general and certainly to the reading public, and all without really compensating societal good.

In a recent (1972) comprehensively researched and closely reasoned paper on "The Copyrightability of Typography and Regulation 202.1(a)" by Harriet L. Oler. Attorney for Examining in the Copyright Office, and in which Ms. Oler concluded that "mere variations of typographic ornamentation, lettering or coloring" should continue to be denied registration under 17 USC, she also pertinently stated. inter alia. "The trouble stems from the fact that granting statutory copyright protection would fly in the face of traditional standards as to requisite amounts of copyrightable authorship for work of art and from the fact that statutory protection might practically restrict the public's free use of public domain information when printed in a protected font."

Words are the raiment of thoughts, and typefaces and fonts are but the raiment of words, at least that is so in respect of verbal communication and of typefaces and fonts designed to be read. It is the possible copyrighting of such alphabetical, public domain typefaces and fonts, even though they have some original ornamentation that gives our client (and those similarly situated as book and magazine publishers) pause and concern. Parenthetically, such ornamentation will perforce be minuscule by virtue of the self-limiting nature of readability, and such ornamentation will most likely be detectable and distinguishable only by those expert in the art. There is the real and substantial fear of implication in infringement actions that is the basis of this concern. Such apprehension can have a significant "chilling effect" upon the publishing of literary works, with the consequent depressing of activity in that field. If the occupational risks of such publishing be thereby increased, the economic attractiveness and support of that endeavor diminish. This diminution can adversely affect authors of such works by shrinking the market for their writings. The foregoing potential dangers greatly outweigh, I am convinced, the benefits that might accrue to designers of original typefaces and to the manufacturers of such typefaces and fonts thereof, were such typefaces or fonts to become protectible under Titles I or II of H.R. 2223.

As of course, this Subcommittee well knows, under our constitutional Republic, we have placed a high premium on the free flow of ideas, on the freedom of expression and of the press. As I suggested above, were the typefaces and fonts which we have been discussing given copyright status, this flow of ideas would be impeded and the freedom of the press abridged by the threat of liability for copyright infringement that would hover over the publishing of printed literary material. (cf. DeAcosta v. Brown, 146 F 2d, 408, 413, dissent of L. Hand, J.)

In view of the foregoing, I urge that you not abridge press freedom or oppose the momentum of history by statutorily providing or otherwise indicating that "original" designs of readable typefaces or fonts constitute copyrightable subject matter.

Mr. DANIELSON. I yield to the gentleman from New York. Sometimes we get more down to the nitty-gritty in the questions and answers than we do in the open statement. Mr. Pattison.

Mr. PATTISON. I would just like to pass right now.

Mr. DANIELSON. Then I will take over for a minute or two, if I may. You mentioned, Mr. Ebenstein, that you represent some independent manufacturers of type fonts. What is the contrast with an independent? What is a nonindependent? Define the term.

Mr. EBENSTEIN. As I have defined an independent manufacturer, it is one who does not also make the typesetting equipment as contrasted with Mergenthaler, for example, who makes typesetting equipment and makes fonts for their own machines.

Mr. DANIELSON. They make the fonts that are used in their typesetting equipment. You simply-within this subject matter, at least, you only manufacture the fonts. Is that the idea?

Mr. EBENSTEIN. That is correct.

Mr. DANIELSON. Are the type fonts, and I gather that big square thing there is a type font

Mr. DEW. A grid, ves.

Mr. DANIELSON. It is one. There are others. Can the type font for a Mergenthaler machine be used in machines-machines of other manufacturers?

Mr. EBENSTEIN. Absolutely not.

Mr. DANIELSON. Can the fonts of other manufacturers be used in the Mergenthaler machine?

Mr. EBENSTEIN. Absolutely not.