The font pirates vs. Adobe: A victory for the good guys

MacWeek, Feb 16, 1998 by Kathleen Tinkel

Type designs aren't protected by copyright in the United States. This circumstance has created an opportunity for font cloners -- any typeface they can see, they can legally copy. It's not that easy, of course. Duplicating an existing design by tracing over scanned-in images takes a lot of time, and even mediocre results require at least some skill. And they can't use the original font's well-known name because that is protected by trademark.

A few years ago, a couple of knockoff houses decided to save time by using over-the-counter font-editing software to open commercial fonts and generate new fonts under their own brand name. Most made a few changes in the width or proportion of the letters, but the result was a fairly straightforward copy of the character outlines.

SoftKey International (now The Learning Co.) and its supplier Southern Software Inc. decided to try this trick on some 1,100 fonts from Adobe Systems Inc. They copied font software from Adobe (and others) and sold it cheaply in large collections. One of these, SoftKey's Key Fonts Pro CD with 1,555 fonts, cost about $30 on the street, for example.

Although the letter designs can't be copyrighted, computer software is protected, so Adobe took the cloners to court. On Feb. 2, it won -- not everything, but a substantial victory. Judge Ronald M. Whyte of the U.S. District Court for Northern California determined that Adobe's font software meets two tests of copyrightability: (1) They are original works of authorship; and (2) placement of the points in font-editing software is a "creative act" in copyright terms.

An important principle

This doesn't change the copyright law -- letter shapes are still not eligible for protection. But it separates the unprotected visual shapes of the letters from the computer code used to create the curves and lines on screen and paper, and it gives type designers and font manufacturers a tool for prosecuting those who make unauthorized copies of their designs. This decision drives cloners back to older, tedious and uneconomical methods of copying.

Users should be happy about this decision. While it clearly benefits Adobe and other large foundries, it will also protect the small, independent designers who provide some of the most innovative and interesting fonts on the market. It's also a victory for creative professionals everywhere, as it upholds the principle of giving fair credit to those who create visual imagery of all kinds.

Not over yet

Adobe based its case on one type design, Utopia. It now must demonstrate that the same process was used to create the hundreds of other fonts in the case. And the plaintiffs have promised to appeal. But Judge Whyte's clear, careful reasoning seems likely to survive the appeals process.

Kudos to Adobe for persisting with this historic court case, as most earlier cases have been settled out of court. n

Graphic designer Kathleen Tinkel welcomes comments at ktinkel@compuserve.com.