Historically, fonts weren’t protected by copyright in the United States because they were considered useful items. That made sense, because for most of that time, fonts were primarily an industrial product, cast in metal by foundries.
In the ’60s, however, metal type was eclipsed by typesetting systems that offered easily swappable fonts. These systems allowed font design to be separated from font manufacturing. This, in turn, allowed more companies to put designs into the marketplace. But under copyright law, those designs still had no protection, spawning a market for cheap (and legal) knockoffs.
In 1976, as the U.S. Congress prepared to amend the copyright act, type companies had an obvious incentive to seek new protection for fonts. Luckily, these companies found an influential ally: the register of copyrights, Barbara Ringer. Ringer testified to Congress that even if fonts didn’t deserve full copyright protection, they deserved more than nothing. To no avail—Congress didn’t enact any new protections.
In the 1980s, the personal computer arrived, and the shift to digital fonts reopened the question of copyrightability. Digital-type vendors continued to press their case with Congress, unsuccessfully.
But one of those vendors, Adobe, had a clever idea. Today we know it as the company that inflicted PDF on the world. But at the time, Adobe sold a large library of digital fonts. Rather than push for legislative changes, Adobe encouraged the Copyright Office to revise its regulations about the registrability of digital fonts. The Copyright Office had already recognized software programs as copyrightable items. If digital fonts could be characterized as software programs, the thinking went, then assumedly they should receive protection too.
The final regulation
That was the state of the law in 1997, when Adobe filed a copyright-infringement case against Southern Software, a company that had sold a more-or-less cloned version of Adobe’s font library. Southern’s defense: the fonts were not copyrightable, and thus no infringement was possible. The judge denied summary judgment, reasoning that the character shapes amounted to protectable expression. The case settled shortly thereafter, with no appeal.
Type designers point to this decision as confirmation that fonts are software and thus protectable. Others have suggested that the decision was an inaccurate interpretation of the 1992 regulation.
Was it? Maybe. But the question is largely obsolete. Fonts are digital files, and like every other digital file, the internet will happily provide you a free copy. Yet the font business—completely opposite to the music business in this regard—has continued to grow and thrive in the internet era.
Therefore, the font business must be based on something closer to the honor system. It remains an unusual counterexample to the idea that digital rights management and litigation are indispensable tools in intellectual-property economies.