Mr. DANIELSON. Is there some reason, patent law or otherwise, why you as a font manufacturer could not manufacture a font that would go into a Mergenthaler machine?

Mr. EBENSTEIN. Mergenthaler does have a patent which covers several of their pieces of typographic equipment. Mergenthaler also has a patent that covers a specific arrangement of type font which they use. Whether or not a type font could be made for a Mergenthaler machine that did not violate their patent rights, I don't know.

Mr. DANIELSON. Would it be-it would at least be a complex job to do so, is that it?

Mr. EBENSTEIN. I would think it would be a complex job to do so, yes sir.

Mr. DANIELSON. The independent manufacturers of type fonts, whom you represent, do not make type fonts that will go into the Mergenthaler machines.

Mr. EBENSTEIN. My client does not, no.

Mr. DANIELSON. Client, singular or plural?

Mr. EBENSTEIN. I represent a single client who is among this group. I know of no other that does either.

Mr. DANIELSON. I see. I am trying to be sure that I understand this. that a particular type font, the mechanical setup and the relative location of the different characters within that type font are unique in that one to the Mergenthaler machine, in another one to some other machine, and so forth. Is that correct?

Mr. EBENSTEIN. That is correct. In fact, in some cases the shapes are entirely different. Some are round, some are rectangular, some are square.

Mr. DANIELSON. So long as it is correct, I don't care what the shape is. I am thinking of whether or not compatibility-does the other gentleman confirm that?

Mr. WASSERSTROM. No compatibility.

Mr. DANIELSON. Again, you don't know, but that is not to say-incidentally, I might add, Mr. Mulliken, I thought you were the attorney for the second witness. I see I am wrong.

Our Chairman is back. Mr. Chairman, we have Mr. Ebenstein, Mr. Dew, and Mr. Wasserstrom, all of whom have testified. Mr. Mulliken is the second gentleman from the left as you face them. He represents the International Typographic Association and he has not testified. I don't wish to pass

Mr. MULLIKEN. Mr. Dew is testifying for both of us.

Mr. DANIELSON. Your testimony is included in Mr. Dew's?
Mr. MULLIKEN. Yes.

Mr. DANIELSON. Very well. Then I think-to continue my questions, if I understand this correctly, if Company A manufactures a typesetting machine and also manufactures the type font to go into it, no other type-font manufacturer can produce a-can manufacture a type font which will go into that same machine and be usable in that same machine.

Mr. EBENSTEIN. Well, that is not entirely true. Separate from protection of the patent laws, any independent manufacturer could make a font for one of the machine manufacturer's pieces of equipment. I think the point is that the pieces of-the fonts that each of the man

ufacturers make for their own equipment do not fit the equipment of other manufacturers.

Mr. DANIELSON. All right. I am glad you explained that. I think I have you now. It is there is no legal barrier to Company X manufacturing a font that will go into the machine of Company A, but the fonts of Company A won't fit any other machine, so that the person who buys a font of Company A very nearly has to use the machine of Company A.

Mr. EBENSTEIN. That is correct. The only legal barrier—

Mr. DANIELSON. And your point, then, was that if we granted a copyrightable, recognized a copyrightable property right in that typeface, and it is exclusively in this type of font, no one would have access to it except a printer who has that particular machine.

Mr. EBENSTEIN. That is correct.

Mr. DEW. Precisely.

Mr. DANIELSON. Thank you. I headed backward the first time.

My only question is within the printing market, how many potential users would be in the market for a particular typeface? You may have already answered that in the last question. Only those printers who own that company's typesetting machine or who have possession of it.

Mr. EBERSTEIN. That is true. I think there are approximately 1,600 independent typographers in the United States. There are approximately four or five or six major machine manufacturers. How that divides up as to how many manufacturers' equipment is in which, I really don't know.

Mr. DANIELSON. But if you got A, B, C, D, E, F, and G machine manufacturers, only the typesetters who have the machine of Company A can use Company A's type fonts and the same applies to the others. Mr. EBENSTEIN. That would be the problem.

Mr. DANIELSON. You would have a restricted market in that it is restricted to the typesetters who have that manufacturer's typesetting machine.

Mr. EBENSTEIN. That is correct, sir.

Mr. DANIELSON. I am satisfied with my questions here.

Mr. KASTEN MEIER [now presiding]. The gentleman from New York. Any questions?

Mr. PATTISON. I take it what you make are fonts for machines other than Mergenthaler machines?

Mr. EBENSTEIN. That is correct.

Mr. PATTISON. All other machines.

Mr. EBENSTEIN. No. We make fonts for only the Alpha typesetting machines manufactured by Alphatype Corp. of Skokie, Ill.

Mr. PATTISON. And the reason you do that is because there is no patent protection for Alpha, apparently, for that particular font.

Mr. EBENSTEIN. There is no patent protection for that particular font. There are many other fonts for which there is no other patent protection. It is a matter of my client's size and scope of activity. I think Mergenthaler is the exception in the industry in which they have a patent which covers the font which they sell.

Mr. PATTISON. Generally speaking, the machine that makes thethe printing machine company that makes their own fonts also and you compete with them.

Mr. EBENSTEIN. Yes. We compete with Alphatype in the sale of fonts for their machines. That is correct.

Mr. PATTISON. And they design their own type and put out different fonts?

Mr. EBENSTEIN. That is correct.

Mr. PATTISON. Do you design your own type or do you use existing— one of the 10,000?

Mr. EBENSTEIN. Well, we do both. We sell fonts both for the Alphatype machine which are similar to the fonts that Alphatype sells. We sell fonts in the same type styles in different sizes. We also sell a number of typefaces which are of our own manufacture and of our own design, and I might add that those that we sell of our own design Alphatype has duplicated, so we are competitors right down the line. Mr. PATTISON. If you manufacture a font for sale to people who own Alphatype machines and somebody takes your font and—how easy or how difficult is it to duplicate the font?

Mr. EBENSTEIN. It is a difficult process to duplicate a font well. It is a photographic process, but the problems involved require very careful alignment and it is not a simple process and there are very few independent manufacturers. I think primarily for that reason.

Mr. PATTISON. How do the people who design typefaces-that is all they do. I take there are some people who do just that. We heard this this morning.

Mr. EBENSTEIN. Well, I would venture to say there probably aren't more than 15 or 20 people in the world who do nothing but design typefaces.

Mr. PATTISON. Do they normally work for Mergenthaler?

Mr. EBENSTEIN. Yes.

Mr. PATTISON. They are employees?

Mr. EBENSTEIN. They don't work for Mergenthaler as an employee, but every major designer is tied in one way or another to one or two of the four or five major manufacturers for whom they have done work over a period of time.

Mr. PATTISON. I have no further questions.

Mr. KASTENMEIER. Do I understand you, gentlemen of the panel, to say that as far as H.R. 2223 is concerned, you prefer it in its present form for you do not feel it includes, subject to the suit that is pending, that it would force you to honor registrations or would otherwise provide for copyright protection for typefaces? Is that your position? Mr. WASSERSTROM. I think, Congressman Kastenmeier

Mr. KASTEN MEIER. With respect to the bill before this committee. Mr. WASSERSTROM. You weren't here when I spoke. I represent publishers and I am interested in-my concern is with the typography of publishing. In my own view, the present bill either does not entitle original typeface designs to copyright status either under title I or title II as presently worded, and my submission was that you should not modify or effect changes to permit the copyrightability of this kind of readable typeface. And I also suggested very strongly that you not open the door of copyrightability in any report that you may issue on this bill.

So, speaking for myself and my client, and publishers in general, I believe I am speaking properly for them, that I think we would be satisfied with the bill in its present form.

Mr. KASTENMEIER. While you quote, as I understand it-you cite Mr. Irwin Karp and Mr. Alan Latman as believing the present copyright law does not include protection for typeface designs.

Mr. WASSERSTROM. When I testified, Mr. Kastenmeier

Mr. KASTEN MEIER. I was going to say did not someone state that? Mr. WASSERSTROM. I testified at the hearings at the Copyright Office, and so did Mr. Ebenstein, for that matter.

Mr. KASTEN MEIER. Mr. Ebenstein, I believe, made the citation.
Mr. WASSERSTROM. I didn't cite it.

Mr. EBENSTEIN. I believe at the hearings before the Copyright Office, both Mr. Karp on behalf of the Author's League and Mr. Latman testified that it is not covered under current law.

Mr. KASTEN MEIER. That is not to say that they do not prefer their coverage.

Mr. EBENSTEIN. No.

Mr. WASSERSTROM. Mr. Kastenmeier, Mr. Karp, who testified right after I did, was of the same view that I was and that is that the Register should not change the existing registration to permit this kind of typeface even when original in a copyright sense to enter the house of copyrights, so to speak, by the registration route.

Mr. EBENSTEIN. I can't speak for either Mr. Karp or Mr. Latman, but I read their testimony before the Copyright Office to go well beyond that. In the comments made in the letter from the Copyright Öffice to the committee, there was a quotation from Mr. Karp. I think the committee, if interested, should review Mr. Karp's complete testimony and Mr. Latman's testimony and I believe that their positions, although I can't speak for them, of course, it sounded to me like they went beyond merely whether it is protected or not protected under present law, but which should be—

Mr. KASTEN MEIER. But as a matter of policy also shouldn't be protected.

Mr. EBENSTEIN. I believe that to be their testimony. Again I can't speak for them. I would be glad to provide the committee with a copy of the transcript of those hearings that were conducted before the Copyright Office and I will do that by mail if that is acceptable, if the committee is interested.

Mr. KASTEN MEIER. Of course, Mr. Latman is here or could in a subsequent communication to this committee amplify his own point of view on that subject.

In any event, if there are no further questions, on behalf of the committee, I would like to express our gratitude to you gentlemen forMr. DANIELSON. Mr. Chairman, may I ask one additional question about type fonts, please?

Within a type font, for instance, take that large one there that is about 7 by 9 or something like that, the various characters withincould you hold it up, Mr. Dew?

Mr. DEW. Certainly.

Mr. DANIELSON. Öh, yes. There are a number of panels, about 12 panels within that 1 framework, and within each panel there are about-there are a number of characters.

Mr. Dew. Characters, upper case, lower case, additional characters. Mr. DANIELSON. Is the physical location of those characters on the

plate or glass or film, whatever that is, is that critical in the use of the typesetting machine?

Mr. DEW. Yes.

Mr. EBENSTEIN. Yes, it is. A typesetting machine is set up to move that font to a certain position and then expose

Mr. DANIELSON. Light will pass through the character.

Mr. EBENSTEIN. That is correct.

Mr. DANIELSON. And therefore there must be

very close tolerance

on the manufacture of the font in coordination with the mechanism so

that when hit "M" you get "M," for example.

Mr. EBENSTEIN. That is correct, sir.

Mr. DANIELSON. Thank you. I wasn't sure of that.

Mr. KASTENMEIER. Thank you for your testimony.

[Subsequently, the subcommittee received the following letters from American Institute of Graphic Arts; Michael Parker of Mergenthaler Linotype, Howard B. Rockman and Luis Tomas Estrada.]

THE AMERICAN INSTITUTE OF GRAPHIC ARTS,

New York, N.Y., July 14, 1975. Hon. ROBERT W. KASTEN MEIER, Chairman, Subcommittee on Patents, Trademarks, and Copyrights, Judiciary Committee, House of Representatives, Washington, D.C.

DEAR CONGRESSMAN KASTEN MEIER: The American Institute of Graphic Arts is concerned with the balance of information that will be obtained from your committee's hearings on typeface design protection. My constituency, some 1840 professionals working in graphic communication, are what might be called “our country's typeface consumers". Our designers are the ones who actually create books and all kinds of printed and graphic material with type as a vital creative communications tool.

On June 24th I spoke on the telephone with your counsel, Mr. Herbert Fuchs who informed me that the testimony time that is to be available at your hearings had already been allotted.

Last January AIGA held a special meeting on this subject at which Ms. Barbara Ringer and others participated. Out of that was drawn up an informal statement of position. On advice from New York Congressman Edward I. Koch, we take the liberty of sending to you the enclosed 30 copies of the statement for distribution to your committee and for the record.

If there is further information or testimony required, please telephone me at (212) 758-2853. Sincerely,

KARL FINK, President.

STATEMENT OF POSITION, TYPE FACE DESIGN PROTECTION, THE AMERICAN INSTITUTE OF GRAPHIC ARTS

The American Institute of Graphic Arts numbers among its 1700 members both typeface designers and typographic consumers-graphic designers and graphics production people who design with and specify typography. In the current controversy over type design protection, the Institute has two concerns: 1. To exercise its influence and offer help to seek a solution which will, insofar as possible, serve the needs of the graphic arts professions.

2. To help create a climate in which type designers can work both creatively and with adequate recompense and in which graphic designers can be free to select typefaces on the basis of appropriateness and aesthetic considerations without fear of legal entanglement.

AIGA is composed largely of creative people working in graphic communication, publishing, advertising, promotion, signage and other manifestations of visible language a broad representation of the users of typography.

To us, type is a vital part of the communications process. It is a means of creative expression. In our opinion, the outcome of current discussions will be an important factor in determining the future visual quality of American communication. It will most assuredly influence the future of typographic design in this country. It can help create conditions that nurture and support creativity or conditions that stifle creative thinking, experiment, and innovation.