Update on the application of copyright law to typeface design and font software

By Dr. Jan Kaestner, General Counsel at Monotype 

First, we’ll define some common terminology to ensure we’re aligning concepts to the same labels. Next, we’ll go through a short overview of the general copyright landscape and more in-depth summaries for select jurisdictions. Finally, we’ll discuss how the industry is dealing with a variegated and evolving legal playing field. As always, nothing here should be taken as legal advice — always consult your own counsel on individual legal matters. 

I. Terminology.

The terms “typeface,” “fonts,” “type,” “font software,” etc. are used inconsistently and sometimes interchangeably, not only in judicial decisions but also in articles discussing the copyrightability of typeface design and font software. Throughout this article, the following terminology will be used: 

In short, typeface herein describes the visual representation of a certain design and font software describes the digital file required to reproduce it. The common term font is intentionally avoided in this article because its meaning depends on the context. For instance, font may be used to describe a particular size, weight, and style of a particular typeface in metal typesetting, or to describe font software (i.e. a computer font) or a typeface in the context of digital type. The inconsistent use may explain some of the confusion around the interpretation of case law and academic papers which deal with the copyrightability of type. 

II. International background.

Like other Intellectual Property (IP) laws, copyright law is territorial, meaning that the law of the country where protection for a work is sought must be applied. However, 181 of the 195 countries in the world have ratified the Berne Convention for the Protection of Literary and Artistic Works of 1886 in the form of the Paris Act of 1971. Therefore, most jurisdictions provide a statutory framework which protects the rights of authors in their literary and artistic works. The framework is rudimentary, though, so the copyrightability of typeface design and font software can only be determined on a national level.  

A result of this territoriality principle is that type designers, foundries, and enterprises face a complex legal situation, especially since they increasingly work and distribute globally, such as when using web fonts on sites that are accessible worldwide or distributing apps on platforms like the Apple App Store or the Google Play Store. It would be shortsighted to ignore licenses simply because typeface design and/or font software may not be copyrightable in one particular jurisdiction. 

In the next section, we’ll examine these territorial differences in some key jurisdictions. 

III. Copyright protection of typeface design and font software in selected jurisdictions.

While the Copyright Law of the United States does not explicitly state that typeface design is not copyrightable, this is considered a principle that was established by federal case law in 1978. The principle today is evident in federal regulation, such as § 202.1 (e) of the Code of Federal Regulations or the Compendium of U.S. Copyright Office Practices (rf. #313.3(D), 906.4). 

In contrast, the U.S. Copyright Office since 1992 recognizes that font software may be protected by copyright if the computer program that generates typeface design “contains a sufficient amount of original authorship in the form of statements or instructions to a computer,” manifest, for instance, in the U.S. Copyright Office’s Final Regulation “Registrability of Computer Programs that Generate Typefaces” and in the Compendium of U.S. Copyright Office Practices mentioned above (rf. #313.3(D), 723). This interpretation was confirmed by case law in the 1998 decision Adobe v. Southern Software. 

Contrary to registration practice from the late 1990s to around 2020, the U.S. Copyright Office recently started to reject applications for copyright registrations for font software, even though neither the font software technology nor the creative process to create it changed in any way in the last decade. This issue is broached in an ongoing dispute between typeface designer Nicky Laatz and Zazzle.  

While the European Union (EU) does not specifically regulate typefaces or font software, the copyright law of its member states is harmonized through several directives, such as the InfoSoc Directive (2001/29/EC) and Digital Single Market Directive (2019/790/EC). These confirm the general rule that any “work” that is the author’s own intellectual creation qualifies for copyright protection. Similarly, the Software Directive (2009/24/EC) protects computer programs as code and explicitly treats programs as literary works under copyright law. Even though the copyrightability of typeface design and font software under the territoriality principle still must be determined individually for each EU member state, EU legislation and case law provide for important guidance on the copyrightability of typeface design and font software. 

Recently, the EU clarified that the fact that typeface design can be registered as design in the member states does not exclude that such design is also protected by copyright. (Note that design rights are not further covered in this article.) The 2024 Design Directive (2024/2823/EU) and Design Regulation (2024/2822/EU) now expressly state that a design protected by design rights can also be protected by copyright from the moment it is created or fixed, provided copyright requirements are met. This principle of “design/copyright cumulation” applies uniformly across the EU. 

Two important recent cases may also impact the protection of typeface design and font software. In the Kwantum v. Vitra case, the court abolished reciprocity tests for applied art under the Berne Convention. This means that works created outside of the European Union and by authors not residing in the EU now enjoy full copyright protection in the EU if originality criteria are met, regardless of whether the country in which the work was created deems the work copyrightable or not. In the second case, Mio & Konektra, the Court of Justice of the European Union (CJEU) clarified that applied art does not face a higher originality threshold than other works. The aesthetic quality of the applied art is irrelevant; as for other works, copyrightability solely requires that the work “reflects the personality of its author as an expression of his or her free and creative choices.” Not only the creation of typeface design but also the creative process necessary to create digital outlines (which to the greatest extent is not dictated by technical constraints), kerning, and OpenType features allow for enough creative freedom to reflect the type designer’s personality. 

In Germany, case law provides broader protection for typeface design than in the U.S. Regarding typeface copyright, the Federal Court of Justice (Bundesgerichtshof), Germany’s highest civil court, held in 1958 in the “Candida” decision that typeface design — like any other creative output — may generally be subject to copyright protection if the design displays sufficient originality. In the case, the court confirmed the decision of the previous instance that the typeface design in question (Candida) did not exceed the necessary threshold of originality, since only trained font experts could determine aesthetic characteristics that distinguished the Candida typeface from the many other existing antiqua typeface designs. But it held that “(e)ven fonts intended for everyday use (so-called ‘bread-and-butter fonts’) can enjoy artistic protection.” The only case decided on the basis of the Candida decision that we are aware of is an unpublished decision by the regional court of Frankfurt Main which held that “Futura” is a typeface with sufficient originality in 1979 (LG Frankfurt am Main, decision of November 28, 1979, 2/6 O 418-78). 

The sole German decision explicitly dealing with font software confirmed the copyrightability of font software as computer program (LG Köln, decision of January 12, 2000, 28 O 13/97). Like in other countries, the copyrightability of font software is controversially discussed in legal literature. 

In the United Kingdom, typefaces are explicitly mentioned in the Copyright, Designs and Patents Act 1988 (CDPA). The Act does not provide for explicit protection for typefaces or font software, but Sections 54 and 55 indirectly show that the legislator assumed that typeface design may be protected under Section 1 (a) as original artistic work because said sections allow the use of a typeface in the ordinary course of printing. The legislative purpose of the exceptions is to prevent copyright in typeface design from obstructing normal printing and publishing activities and to ensure that copyright law does not create monopolies over the practical use of letters and characters in everyday commerce. 

France traditionally is one of the more advantageous jurisdictions for creatives, with wide copyright protection, for instance for fashion and furniture if it exceeds the necessary threshold of originality. This is also true for typeface design, as is visible in a recent decision in a copyright dispute between the typeface designer Jean-François Porchez and Google. Jean-François Porchez alleged that the typeface design of “Spectral” (a Google Fonts typeface created by Production Type) copied the design of his typeface “Le Monde Journal.” In the decision, the Tribunal Judiciaire de Paris acknowledged originality of the typeface “Le Monde Journal” and thus copyright protection for the design. However, the court eventually dismissed Porchez’s infringement claims, finding the similarities between both typeface designs insufficient. Additionally, the French courts recognize since 1993 (decision by the Tribunal du Grande Instance de Paris) that font software may be protected as computer program under Art. L112-2 No. 13 of the French Intellectual Property Code. 

Similar to Germany, in Japan typeface design may be protected under the Japanese Copyright Act, but only if the type displays “remarkable originality and excellent aesthetic characteristics.” The standard is high and in the leading case “Gona U,” the Japanese Supreme Court ruled that the typeface in question was not protected. Font software appears to be protected as “work of computer programming” under Article 10, Paragraph 1, Item 9 of the Japanese Copyright Act, as the font software contains a set of instructions written for a computer to allow the renderer (and thus the computer) to display the typeface design as a specific result. 

In Israel, it is widely recognized that typeface design can be protected under the Israeli Copyright Act 2007 as artistic work, which includes works of applied art. Similar to the UK, Israel considers typing, word processing, print, and printing as permitted use under Sections 18 et seq. Israeli Copyright law, even if a computer program (i.e. font software) or another product which infringes the right in the typeface is used. The resulting material, however, in those cases remains a copyright-infringing copy. In 2012, the District Court of Tel Aviv decided that the typeface “Koren,” created by the Israeli typographer Eliyahu (Korngold) Koren in the 1950s for the Hebrew Bible “First Hebrew Tanakh Edition,” displayed sufficient originality and creativity, as well as a sufficient level of artistry required for the copyright protection of functional works (Koren Publishing Jerusalem Ltd. et al. v. Microsoft Israel Ltd. et al., decision of June 30, 2012, not published). 

Like in the U.S., but unlike in most other countries, copyrights may be registered in China. In contrast to the U.S., China considers typeface design to be copyrightable, demonstrated by the registration of typeface design by the Chinese copyright office, for instance the “MHei” typeface family. Several court decisions confirm that original typeface design may generally enjoy copyright protection, with some controversy remaining about whether the use of only a few individual characters may constitute an infringement of the artistic work. The Chinese Supreme People’s Court also established that font software is copyrightable as computer software. 

In India, similarly to the U.S., typeface design is not considered copyrightable as artistic work due to the utilitarian nature of the design. However, the Copyright Office registers font software as computer program, a literary work under Section 2(o) of the Indian Copyright Act. An example is the “Between 1 Regular” font software by the renowned Japanese type designer Akira Kobayashi. 

In Russia, case law recognizes that typeface design may be protected by the Russian Law on Copyright and Related Rights as original work of authorship, in particular as graphic design work. 

The following table summarizes the results described in this section: