- Research and analyse naming and copyright issues, the basic pitfalls of illegal practice and the common areas of the copyright process, and the ethical and legal factors most frequently affecting graphic designers. Demonstrate through posting onto the Ideas Wall and in your research journal.
- Communicate clearly the key areas that may infringe copyright or require IP protection in relation to a chosen designed object. Present as a designed piece, incorporating an image of the chosen design and a typographically designed list of key areas.
Typography is one of my graphic design interests and so I thought that it would be appropriate to cover typefaces for this project. I am going to look at the specific example of Songwriters Fonts, how it was taken down due to copyright issues and through that look at typeface copyright law.
WORDS HAVE MEANING & TYPE HAS SPIRITPaula Scher
It is well established that typefaces immediately give the reader a flavour of the piece of writing before the content is absorbed, and subtle changes in leading, kerning, line length and a myriad of other factors can greatly enhance or impede a reader’s experience with the piece. One subset of typefaces are esteemed overall as inviting the reader into the writer’s mind: handwriting.
The choice between Calibri and Garamond might tell something of a personality, but still comes with a set of expectations from the type designer and other examples where the typeface has been used before. Handwriting, though, is something more special. Whether or not you believe in the ‘science’ of graphology, which Wikipedia describes as “analysis of the physical characteristics and patterns of handwriting claiming to be able to identify the writer … or evaluating personality characteristics” (before noting that “it is generally considered a pseudoscience), handwriting draws the reader into the words. That someone has taken the time to write or annotate their words on paper is intoxicating when compared to mindless tapping on touchscreens. Annotations in the margins of books and poems similarly give us insight into famous people’s minds unadulterated by outside edits.
Take a look at Wilfred Owen’s draft for this seminal poem Anthem for Doomed Youth, annotated by Siegfried Sassoon, revealing their shared war experience and effort to convey that to their audience.
Tying into the world of design, take a look at one of Paula Scher’s maps:
Her hand-painted type gives these pieces spirit that would not be the same if the words were formed on a digital screen. Letraset would have the charm of appreciated craft and hard work, but not the same personal effect.
For millennia, humankind has sought to make their writing as uniform as possible so that it can be read by the literate – through scribes and then movable type. Now that with the ease and ubiquity of desktop publishing, the prestige falls on handwriting and handcrafted type. To use our own is personal, but with the weight of authenticity that handwriting undoubtedly conveys, what responsibility do we hold to use others’?
Handwriting is more connected to the movement of the heart.Natalie Goldberg
Songwriters Fonts was a short-lived project in April 2018 that digitalised songwriters’ handwriting to create typefaces from people such as John Lennon, Kurt Cobain, Serge Gainsbourg, Leonard Cohen and David Bowie. Here are some images of handwritten lyrics by these songwriters:
The typefaces were free to download and the project was featured on many websites, for example It’s Nice That, NME and Dezeen. The creators Nicolas Damiens and copywriter Julien Sans said about the project:
“Write songs as the ones who inspired you before. The Songwriters fonts have been created to give musicians inspiration. Writing lyrics with the handwriting of influential songwriters helps imagination to develop. Being in the mood of Bowie, Cobain, Cohen, Gainsbourg, Lennon, might be purely imaginative… but that’s precisely the point.”
After one week, the pair were instructed to take the website and download links down, saying in a statement that they had “been contacted by intellectual property rights owners, and are sad to announce that we have shut down this website because of legal issues. We’re sorry to have to say goodbye.”
I feel that the project was done out of love for music and wanting to inspire others, but can see how it is crossing the line. In the case of intellectual property law my feelings are beside the point, so what are the legal issues with this project? Some of this is going to depend on the jurisdiction that the design was created in: the designers identity as French and the website is registered as a .com with a Canadian company. The songwriters are a mixture of American, Canadian, British and French so the designers are likely to have come across lawyers from all over the world with differing copyright laws.
For the purpose of this work, I will consider UK copyright law as this will be the territory in which I work most often.
Handwriting vs. typeface
The original material used for the typefaces was taken from the handwritten lyrics of the songwriters and from what I can see, UK law on handwriting is unclear at best. The content of what is written would probably fall under UK copyright law, in particular the song lyrics which would be covered under the The Copyright, Designs and Patents Act 1988 which states that gives the creator rights “70 years from the end of the calendar year in which the last remaining author of the work dies, or the work is made available to the public, by authorised performance, broadcast, exhibition, etc.” (Copyrightservice.co.uk. 2020) However, Damiens and Sans don’t share the lyrics of the songs.
Also included in the source material were letters, “including Kurt Cobain’s suicide letter, on websites and public libraries to collect examples of the various glyphs” (Morris, 2018). As we have seen in the UK with the Daily Mail publishing excerpts of Meghan Markle’s letters to her father, the rights would stay with the creator and could only be shared if the work was published with permission of the creator. Again, a moot point because this covers content rather than design, and to go back to the source material I question whether it is appropriate to use a suicide letter for this project. Why not, if it were published already, but the use of it makes me uneasy.
Typefaces could be considered to fall under another section of legislation, computer programmes which the Copyright (Computer Programs) Regulations 1992 extended the rules covering literary works to include computer programs. In a 2001 case, GreenStreet Technologies was successfully sued by Linotype Library and parent company Heidelberger Druckmaschinen in the High Courts of Justice. Linotype Library claimed that GreenStreet was infringing the copyright of the design of four typeface families by including copies of the typefaces in its own software library without proper licensing or permissions. The court ruled in favour of Linotype Library as the company had gathered substantial evidence of the copyright breaches (Typeface copyright decision in UK High Court, 2001).
In the US it differs: “under U.S. law, typefaces and their letter forms or glyphs are considered utilitarian objects whose public utility outweighs any private interest in protecting their creative elements. However, there is a distinction between a font and a typeface. The machine code used to display a stylized typeface (called a font) is protectable as copyright. In 1992, the US Copyright Office determined that digital outline fonts had elements that could be protected as software. Since that time, the Office has accepted registration of copyright for digital vector fonts, such as PostScript Type 1, TrueType, and OpenType format files.” (Intellectual property protection of typefaces, 2020).
I’m not sure this legislation applies as the source media and created media were different (from handwritten to typeface) and I am unaware of court cases that cross the media line.
In other handwriting examples, one founder of Mina Lima, Miraphora Mina found herself in a tricky position with her own handwriting. As an inhouse designer for the first Harry Potter film she had written the prop letter from Professor McGonagall in her own handwriting and therefore Warner Bros. considered it to be part of their intellectual property. This problem did not emerge for years until Mina Lima was taking on work outside the Harry Potter Universe and Mina wanted to use her own handwriting for new projects. She has only recently recovered the rights to use her handwriting in a professional capacity. I can’t find published proof of this and heard it from Mina Lima themselves at a walk. So, please internet, do not quote me.
In a more solid example, BuzzFeed designer Mark Davis created a freely available font version of US presidential candidate Donald Trump’s handwriting, called Tiny Hand. It was created for a satirical piece published by BuzzFeed, which “purported to be pre-debate speech notes written by the candidate” (Tucker, 2016). The typeface seems to be taken from similar sources to the Songwriters Fonts but has not incurred any wrath from Donald Trump. Maybe he can’t tell his own insane ramblings from the ones written in Tiny Hand?
Although we must steer away from drawing graphological conclusions, the handwriting does lend itself to “for a font whose graphic properties are external traces of their author’s inner consciousness”. The font is “characterized by an odd mixture of capital and lowercase letters and by outlandish and looping shapes”, looking oddly like Disney and Comic Sans. (Donzelli and Bugden, 2019). The paper goes on to contextualise the creation of the typeface and that is very interesting, but beside the point for this post.
By using a typeface to create protest signs and point out Trump’s hypocrisies from the man’s own insults and smears against people seems, to me, a fitting spoof for the spoof of this presidency. The typeface has not received any comment or derision from Trump, considering that the font is named after his famed insecurity over his hand size. That, and that it takes direct letterforms that to form a method to produce slander that could prove damaging to his character and standing.
Right to identity & THE COPYRIGHT HOLDERS
Here I will keep with the same theme, that of identity, but return to my original example: Songwriting Fonts. The songwriters whose handwriting Damiens and Sans mimicked for their fonts had passed away at the time of release, the latest being Cohen in 2016. Death does not dissolve rights, though. Copyright laws extend past the point of publication for varying points of time, regardless of the living status of the copyright holder.
For typefaces, the copyright extends for twenty-five years “from the end of the calendar year in which the first such articles are marketed” (Copyright, Designs and Patents Act 1988). Some references the designers used might have fallen within this date – Kurt Cobain’s suicide note as one example. Because the songwriters are no longer with us might mean this project is much less likely to piss them off, their rights still exist and their estates hold the power to exercise them.
In the US, personality rights are more widespread than they are in the UK. If a celebrity feels that their image is being exploited in the UK, a lawyer will usually try to argue their case under traditional intellectual property law. I can’t find past precedent for typeface usage tied to personal image. Considering handwriting is personal, and how much physiognomy of typeface and the personality of the writer are tied together, I would expect that a lawyer could argue that manipulation of writing is an infraction on that person’s image.
We know from the statement released by Songwriters Fonts that the fonts were taken down after some of the estates contacted them to complain about the project. The details haven’t been revealed, and evidently, all parties felt the infringement was strong enough to warn the designers felt that the warning was strong enough to take heed.
When purchasing and downloading typefaces (here I am making the assumption this is done legally), the buyer has to agree to use the typeface within the constraints that the copyright holder sets out. One common division is between personal and commercial use, which can be further separated.
- Personal: you can use a typeface for personal projects where generally you are not working for a client and you are not making money, but boundaries can differ.
- Commercial: for a project for a client where you might or might not charge a fee, or where the client might charge a fee for the service/product
There are subtlities between the usages, as some foundaries might allow you to use a typeface for a pitch, trial or presentation so designers can reduce their costs of buying typefaces a client might not like. However, an appropriate license must be bought when the designer moves forward.
There are further points to consider, as typeface licensing takes into account how you are going to use it:
- A desktop license enables “you to install a font on your computer and use it for a whole range of offline purposes” which includes most print applications a designer might use (Webster, 2020)
- A web license means that you can use the font for online projects, and sometimes there is a viewer count: the more website or online project is viewed, the more it will cost to license. This is a good way to scale costs to allow small scale producers to access quality typefaces whilst ensuring the foundry/designers receive fair payment. For example, “Good Type Foundry charges €450 for its flagship Good Sans if page views are below 15,000 per month. The license scales up, reaching €2,600 if the site receives up to one million page views. (Webster, 2020)
- An app license: for use in applications and programmes
Within this, there are many nuances and differing types of licensing again, as can be seen on the Dalton Maag website here. Combinations between online and print, personal and business, exist, as can be seen with their end-user licence which allows you “to install the fonts on any number of devices which you own or solely control, for simultaneous use by up-to-the-number of users specified. It allows you to print and produce personal or business documents, including PDFs, but this licence does not include webfont use, ebook distribution, or app distribution.” (Dalton Maag, 2020).
Of course, you could always download that knock-off Baskerville font for free and use it without shame, or any pride for your work. Maybe your reader won’t notice, but you’re breaking “don’t be an arsehole to your fellow designer” rules. There are no copyright laws, at least in. the US, about how much a typeface must differ from an old one to be considered a new font in its own right, so knockoffs are easier to pass off as new than a direct copy. Typefaces, good ones, take many hours to conceive and craft even if they are revivals of old typefaces and it is right that designers are paid for them.
Adobe and Google both have typeface licensing software for free typefaces for commercial usage, albeit with some restrictions but for the majority of designers, the licensing is sufficient. The typefaces are more functional than decorative, but no-one needs another font crafted from snowflakes, thank you very much.
The main takeaway from this section is that typeface licensing has many facets and can differ from foundry to foundry, and that font licensing software is available for large scale audience to keep track of their typeface use.
Damiens and Sans released their typefaces for free and given that they had spent a month making them, they seem to have done the work as a personal project as opposed to a commercial venture. It also harks back to their intention to inspire new songwriters by making them available to everyone. That intention is laudable.
Because they sought no permissions and paid no money to the estates, I could take the view that they should only be free. That being said, fonts are digital pieces of software that can be endlessly duplicated, and their ready availability means that Damiens and Sans had little control over what was created once they released the files. The typefaces could have been used to create malicious content that would damage the artists’ reputation and income. Although they would (probably?) bear no legal responsibility for this damage, it should have been a consideration in creation because they are enabling others. Instead of realising the typefaces to the world, could they have done a collaboration with the estate holders where young songwriters could use the typefaces in a closed system, perhaps?
In my opinion, I think that Damiens and Sans did not intend to aggrieve the estate holders for these musicians and that on face value they wanted to do as they stated: to inspire new songwriters. On the other hand, how they went about achieving that aim was tone-deaf, showing a shallowness of thinking, and that there are more appropriate ways of doing this. For example, either gaining permission to do this or hosting an exhibition (perhaps online) showing the whole artefacts from these songwriters using images with the appropriate permissions. Undoubtedly this approach would take longer than the one month they spent on this project. In balance, I think that Songwriters Fonts had noble ideas but they lacked awareness or carefulness in regards to personality rights that they should have looked into.
- Morris, A., 2018. Musician-Inspired Fonts Website Forced To Close After Going Viral. [online] Dezeen. Available at: <https://www.dezeen.com/2018/05/01/musician-inspired-fonts-website-closes-viral/> [Accessed 16 June 2020].
- Copyrightservice.co.uk. 2020. UK Copyright Law. Copyright, Designs And Patents Act 1988 : The UK Copyright Service. [online] Available at: <https://copyrightservice.co.uk/copyright/uk_law_summary> [Accessed 16 June 2020].
- En.wikipedia.org. 2020. Intellectual Property Protection Of Typefaces. [online] Available at: <https://en.wikipedia.org/wiki/Intellectual_property_protection_of_typefaces#:~:text=The%20current%20United%20Kingdom%20copyright,cover%20their%20usage%20by%20typographers.> [Accessed 16 June 2020].
- “Registrability of Computer Programs that Generate Typefaces”, 57 Fed. Reg. 6201 (Feb. 21, 1992), reproduced in U.S. Copyright Office announcement ML-443 Archived 7 November 2012 at the Wayback Machine
- En.wikipedia.org. 2020. Intellectual Property Protection Of Typefaces. Pinsentmasons.com. 2001. Typeface Copyright Decision In UK High Court. [online] Available at: <https://www.pinsentmasons.com/out-law/news/typeface-copyright-decision-in-uk-high-court> [Accessed 16 June 2020].
- Tucker, E., 2016. Donald Trump’s Handwriting Turned Into Tiny Hand Typeface. [online] Dezeen. Available at: <https://www.dezeen.com/2016/10/21/donald-trump-tiny-hand-typeface-font-design-mark-davis-us-election-2016/> [Accessed 16 June 2020].
- Donzelli, A. and Bugden, A., 2019. The “Tiny Hand” of Donald Trump and the Metapragmatics of Typographic Parody. Signs and Society, 7(2), pp.217-244.
- Webster, G., 2020. A Complete Guide To Font Licensing For Designers. [online] Creative Bloq. Available at: <https://www.creativebloq.com/features/font-licensing> [Accessed 17 June 2020].
- Copyright, Designs and Patents Act 1988, c. 3. Available at: http://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/III/crossheading/typefaces#contentSearch (Accessed: 17 June 2020).