Written by Stephen Coles on October 7, 2018

The United States has the dubious distinction of offering no copyright protection for the design of typefaces — at least not in their visual form.1 With the advent of digital fonts, type manufacturers found a way to protect their intellectual property by submitting typefaces for copyright in a format the government did accept: as font software, the computer instructions for placing the points and drawing the curves.

It was under this definition that an oft-cited 1998 infringement case was decided in favor of font maker Adobe over SSI, a company that cloned digital fonts. This workaround is now apparently in question. A change was revealed earlier this year that would essentially delegitimize fonts as software, requiring “each line of the software code” to be “written by the author”. The development caused some type designers to wonder if US lawmakers might ever reconsider the question of whether a typeface design itself should be legally protected.

Perhaps the last time this happened was in 1975, when a judiciary subcommittee from the House of Representatives held hearings on the subject. I recently discovered that the statements and transcripts from the proceedings are all available at the Internet Archive, thanks to a scan contributed by the Boston Public Library. For type lovers, it’s a wonderful document, packed with fascinating evidence, arguments, and dialogue.

Presenting witnesses included various members of the type industry, including Mike Parker of Mergenthaler Linotype, George Abrams of Alphabets, Inc., and Aaron Burns of International Typeface Corporation (ITC).

While most companies in the industry made their money from typesetting equipment — such as Mergenthaler with its Linotype machine, or manufacturers of phototype machines — ITC was the first corporation to depend on revenue from font licensing, so they naturally led the cause for copyright protection of type design. Earlier in 1975, backed by the AIGA, they advocated for their position in U&lc (Vol. 2, No. 1), a publication widely read by graphic designers. Then, in July of that year, they took their case to the government.

In a letter to the the subcommittee, the US Register of Copyrights at the time confirmed that it was a discussion worth having.

“I call to your attention the recent, very strong movement among individuals and groups of artists (painters, sculptors, and creators of fine, graphic and applied art) for more effective protection. Proposals have been advanced for amendments to the copyright law for this purpose, including registry schemes and opportunities for artists to share in the profits for later sales of their works. I believe these proposals deserve to be heard by your subcommittee.” — Barbara Ringer

As one might expect, the congressmen had difficulty wrapping their heads around the concept of original typeface design.

“I will tell you what my problem is … It is tough for me to imagine 10,000 different ways to make an A.” — Rep. Charles E. Wiggins

It’s interesting to read Abrams’ and Parker’s responses as they do their best to explain the concept to Wiggins and the other members. One of the company statements submitted to the subcommittee contains a now-famous summation of the craft:

“Thus it is not a question of designing a group of beautiful letters, but rather designing a beautiful group of letters.” — Mergenthaler Linotype

To my knowledge, this is the earliest appearance of a quote often credited to Matthew Carter or Walter Tracy. It’s not clear if either man contributed to this document, but as staff at Mergenthaler, they may have. The author could also be Steve Byers, Mergenthaler’s Director of Typography at the time.

Not all type manufacturers presented statements in favor of copyright protection. Castcraft Industries, a Chicago outfit that copied designs in metal, photo, and later digital, was obviously opposed. Among the arguments made by their legal representative was this strong one:

“The Copyright Office would face tremendous difficulty examining originality and creative authorship in typefaces, since the requirements of such examination are beyond the capability of the Copyright Office as presently staffed.” — Howard B. Rockman

Mergenthaler also refuted Dan X. Solo, the prolific replicator of old type who had submitted a 1974 argument against copyright protection.

There are many other interesting tidbits in the supporting evidence submitted by the witnesses. Appended to Mergenthaler’s statement was an article by James Mosley on classification systems, prefaced by this comment:

Concern was expressed at the November 6, 1974 hearing before the Copyright Office whether it is possible to have a classification system so as to permit determination whether a particular typeface design is, in fact, original. Such a classification system can be established — in fact, several already exist!

Both the British and German governments currently have typeface design classification systems. There is also a well known classification system called Vox which basically classifies typeface designs historically. … In short, there exists today various classification systems for typeface designs. If the Copyright Office felt inclined to create its own classification system, Mergenthaler would be pleased to work with the Copyright Office in such an undertaking. — Mergenthaler Linotype

The government never took Mergenthaler up on that offer; otherwise, we’d have yet another national classification system to add to the pile.

I haven’t finished reading the long proceedings from the multiple hearings, but I am sure there are many more nuggets to be found. Please comment with your own discoveries below.

Note

In the US, it is possible to protect a typeface through a design patent, but that is a much more expensive and cumbersome application process. One can also trademark a typeface name, but that offers no protection for the design itself.⤴