HongFangLaw ~ HFL Events ~ n’ 76
15 February 2019

On the originality of typefaces/fonts

Co-authors: Edmond Au, Shirley Lin

Growing together with economic development is the Chinese enterprises’ awareness of enhancing the protection of their intellectual property rights. An example is the increasing copyright lawsuits filed by font makers such as Beijing Founder Electronics Co., Ltd. against unlicensed uses of their products. Whether their claims to protection should be supported depends largely on how original their typefaces/characters of typefaces are, as required of copyrightable works.

Do the characters of a typeface count as original works of art? Courts in Beijing gave varying answers in similar cases. In Founder v. Wenxing, the first-instance Beijing No. 1 Intermediate People’s Court affirmed the characters’ originality and their eligibility for copyright – “The characters are works of art as they are digital expressions created by Founder independently, and they are graphic designs consisting of lines and possessing aesthetic value. Founder enjoys copyright on every character of its typeface as well as the font made of data and codes.” While the Beijing Higher People’s Court shared similar opinions, the Beijing Haidian People’s Court ruled differently in another lawsuit brought by the same plaintiff. In Founder v. P&G, the court, while denying copyright to individual characters of the typeface, found the opposite for the aggregate, citing the latter’s originality given rise by the unified style and shape – “A typeface (as a work of art) is normally used as a whole for its innate continuance, while the characters, when used separately, are not up to the standards (for artistic works)”. The court elaborated on how the originality of characters could be undermined by the typeface’s style, in general, : “Constrained by the typeface which requires a consistent expression, the characters cannot be as distinctive as calligraphies bearing personal traits or single topographic designs independently developed.” In our opinion, the Beijing Haidian Court’s acknowledging copyright on the overall yet denying it on the parts may not be soundly grounded.

First, the consistent style of a typeface does not necessarily hurt the originality in the consisting characters. Conclusions should be made case-by-case. For example, if each of the elements can be distinguished by themselves (such as for not being concrete or utilitarian enough) from existing designs in the public domain, they should be deemed original regardless of the typeface’s limitations. Therefore, rather than rush to conclusions, comparison, as mentioned above, is necessary when deciding whether the aesthetic or utilitarian value weighs more in the characters. In practice, the majority of typefaces have been generated based on existing ones in the public domain (Mincho, Clerical Script, Regular Script etc.) without any modifications. As industrial products, they are developed more for practical use. In the lack of enough distinctiveness and originality, they fail to produce aesthetic effects that are part and parcel of artistic works. If this was the case that the Beijing Haidian Court was judging, the court would have had quite sold grounds to grant the rulings. The denial of protection in such cases is for the good of society. Copyright on typefaces less original would risk confusing font makers and the general public in terms of the legal boundaries. If too broad protection was given, there would likely be more infringements unconsciously committed and obstacles to the use and development of characters as a communication tool. At the core, it would run contrary to the essence of copyright that was supposed to protect originality.

Second, a typeface (rather than the font, the program for producing a typeface), as a compilation of characters, should not be original enough to be considered as an artistic work. When making a typeface, designers mainly work on the individual characters which have been picked based on national standards or user behavior to have the parts carry similar traits. When designers do not invest much intellectual work in the process to give their products sufficient originality, copyright should not be granted to the characters even, let alone the overall typeface. Therefore, it would not be reasonable for the Beijing Haidian Court to have favored the compilation while voting against the elements.

As for fonts, the Supreme People’s Court (SPC) found in Founder v. Blizzard et al. that the plaintiff’s Lan Ting Font Family was a computer program eligible for copyright, but the typeface as the result of codes and data was not a copyrightable work of art. When it came to the characters generated by running the program, their originality could not be determined without a context. However, the SPC also emphasized that, the defendants would not be deemed infringing even if the characters of the Lan Ting Font Family were found original– “…in the consideration of the characters’ expressive and communicative functions, which were highlighted in the defendants’ uses, the characters could be reasonably used for these purposes regardless of whether copyright was applicable or not.”

In a nutshell, in order to determine whether there is a copyright infringement upon a typeface/font, we should not only factor in the originality of the object used but also consider how and why it has been used. As in the last example, if stylized characters are used for communication rather than their visual effects, infringement may not be affirmed even if the characters bear originality. But for font makers, re-programming fonts with other’s works and producing similar results might risk violations. All in all, few current typefaces are original enough to be copyrightable due to their industrial nature: they are more than often required to be recognizable for pragmatic use, which puts a cap on how far the originality could possibly go. Under these circumstances, copyright infringement is rather avoidable when such typefaces/characters are used in ordinary communications only.

Notes:

  1. Judgment No. (2003) YZMCZ4414 by Beijing No. 1 Intermediate People’s Court
  2. Judgment No. (2005) GMZZ443 by Beijing Higher People’s Court
  3. Judgment No. (2008)HMCZ27047 by Beijing Haidian People’s Court
  4. Judgment No. (2010)MSZZ6 by Supreme People’s Court

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