For approval: SIL Open Font License 1.1

John Cowan cowan at
Thu Nov 6 15:40:57 UTC 2008

Dag-Erling Smørgrav scripsit:

> This is probably off topic (perhaps we should continue this on license-
> discuss), but I am very surprised to learn this.  Can you explain the
> resoning behind it?  I would have thought that fonts and logotypes would
> be considered works of art, and be copyrightable as such.

In short, because they are not artistic enough.  The 4th Circuit Court
of Appeals decided the leading case, Eltra Corp. v. Ringer, 579 F.2d 294
(4th Cir. 1978).  Eltra was a maker of typesetting machines who had hired
a type designer, Ringer was the Registrar of Copyrights who had refused
the register Eltra's submitted application for a work-of-art copyright
in the design.  The relevant excerpt follows (I've stripped footnotes):

    [Eltra Corp.]'s right to registration necessarily turns on whether
    its design submitted for registration qualified as a "work of art"
    as that term was used in § 5(g). Congress offered no definition of
    "work of art" in the statute nor is there in the legislative history any
    clear declaration of Congressional intent in the use of the term. It did
    replace an earlier phrase, "work of fine arts," used in the predecessor
    provision of the Act. Obviously, though, the change in phraseology was
    "deliberately intended as a broader specification than 'works of fine
    arts' in the (earlier) statute." Primarily, it seems to have been adopted
    in order to eliminate any "(v)erbal distinctions between purely aesthetic
    articles and useful works of art" in the application of the term under
    the Act. And, in Mazer v. Stein (1954) 347 U.S. 201, 74 S.Ct. 460,
    98 L.Ed. 630, the Court gave effect to this obvious intention of the
    Congress in its new phrasing.
    In Mazer "original works of sculpture in the form of human figures
    of traditional clay model technique" were submitted by a manufacturer
    for registration as "works of art" under § 5(g) and a certificate of
    registration was duly issued for such statuettes. The manufacturer then
    used the statuettes as bases "for table lamps, with electric wiring,
    sockets and lamp shades attached." A rival manufacturer, however,
    "copied the statuettes, embodied them in lamps and sold them." The
    first manufacturer sued claiming "infringement of six copyrights for
    small three-dimensional statuettes of male and female dancing figures
    made of semi-vitreous china." In affirming a finding of infringement
    of the copyright covering the statuettes, the Supreme Court relied on
    "a contemporaneous and long-continued construction of the statutes by
    the agency charged to administer them that would allow the registration
    of such a statuette as is in question here," and upheld the statuettes
    as "works of art" even though they "might also serve a useful purpose"
    in the manufacture of lamps.
    The important fact, which must not be overlooked in analyzing Mazer,
    is that the Supreme Court in that case was dealing with a statuette,
    which though incorporated in a commercial article, was capable of existing
    independently and had itself been registered as a Separate "work of art"
    under § 5(g). And it was that type of "applied art" which the court
    found copyrightable under Mazer. And the Copyright Office proceeded to
    amend its Regulations defining "works of art" under § 5(g) to conform,
    (§ 202.10(c), 37 C.F.R.):
    "(c) If the sole intrinsic function of an article is its utility,
    the fact that the article is unique and attractively shaped will not
    qualify it as a work of art. However, if the shape of a utilitarian
    article incorporates features, such as artistic sculpture, carving,
    or pictorial representation, which can be identified separately and are
    capable of existing independently as a work of art, such features will
    be eligible for registration."
    This amended Regulation spelt out a plain distinction and sought to draw a
    precise line between copyrightable works of applied art and uncopyrighted
    works of industrial design, as declared in Mazer. And the distinction
    as expressed in the Regulation, clearly accorded with Congressional
    intent and understanding, which, after all, is the controlling factor
    in statutory construction, as demonstrated by the long acquiescence
    of Congress in the Regulation. That this is so is clear from the
    exhaustive House Report on the 1976 revision of the Copyright Act,
    wherein the language of Regulation 202.10(c) is quoted and declared to
    be the proper construction of the phrase "works of art" as used in §
    5(g). Thus, Regulation 202.10(c) represents the consistent construction
    of § 5(g) by the "agency charged to administer" the Copyright law since
    the early 1950s, accords with the decision in Mazer, and conforms with the
    Congressional intent itself in the definition of the term "works of art"
    in the Act, as shown by Congress' long acquiescence in the construction
    and, more importantly, by its specific approval as expressed in the
    House Report on the 1976 revision.
    Under Regulation 202.10(c) it is patent that typeface is an industrial
    design in which the design cannot exist independently and separately
    as a work of art. Because of this, typeface has never been considered
    entitled to copyright under the provisions of § 5(g). And [Eltra Corp.]
    has recognized this because over the years it, along with the others in
    the trade, has sought repeatedly to induce Congress to amend the law in
    order to provide copyright protection to typeface. Just as consistently,
    Congress has refused to grant the protection. The latest refusal was in
    connection with the 1976 revision. The right to registration is purely
    statutory and depends on legislative authorization. What Congress has
    refused to authorize for registration, Courts cannot authorize or require.

Based on this case, the Copyright Office has ruled that a bitmap
font is a mere digitization of a (visual) typeface, and likewise not
subject to copyright.  The same is true of a hint-free outline font:
mere descriptions of outlines are still equivalent to the underlying
and uncopyrightable typeface.  Hints, however, are considered software
and as such are copyrightable.

Note that the amount of effort put into a work is not, in the U.S.,
relevant to its copyrightability, so arguments like "It's much easier
to take a photograph (which is copyright) than to design a font, so why
doesn't a font get copyright protection?" aren't relevant.
Knowledge studies others / Wisdom is self-known;      John Cowan
Muscle masters brothers / Self-mastery is bone;       cowan at
Content need never borrow / Ambition wanders blind;
Vitality cleaves to the marrow / Leaving death behind.    --Tao 33 (Bynner)

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