Can I copyright my font in the United States?

As technology evolves new legal questions present themselves. The hand written symbols and glyphs of ancient people evolved into written languages. To reproduce a book a scholar would have to manually transcribe the contents of a book. The combination of printing press and moveable type allowed books to be mass produced and spurred a new era of communication. Similarly computers and the internet have created an environment which allows ideas to be transmitted around the world in the blink of an eye.

The presentation of an idea is frequently more important than the idea itself. To keep the interest of a reader, the text of a book or advertisement needs to be visually pleasing. Ancient hand copied books were works of art with embellishments added to the words to make the text more interesting. With the advent of moveable type, the concepts of typeface and font were introduced. The typeface is a particular design of type, while a font is a type in a particular size and weight. A typeface is a family of several different fonts of a similar style. A typeface was traditionally embodied in a durable material like metal or wood, and a printer would invest a significant amount of capital building up a library of different typefaces to give printing customers options. With the advent of computers, the distinction between typefaces and fonts eroded. Most people think of Times New Roman as a font, but technically, it is a typeface and the different sizes and styles (bold, italic, regular) are the fonts. With computers, getting a new font is as simple as installing a new program.

Whether a font is created by carving it out of wood or designing it on a computer, a significant amount of effort goes into designing a new font. To be commercially successful, a font needs to be visually pleasing, distinctive and memorable. Designing a new font can be a lucrative business, many companies choose a specific font to identify their corporate brand. The question then becomes how can the creator of a new font protect their creation from being copied?

Copyright immediately comes to mind as a method of protecting a font from unauthorized copying. Unfortunately, copyright in the United States explicitly excludes typeface from copyright protection. This exclusion originates from the era of movable type, which was considered a utilitarian object. Copyright law protects artistic works, and while creating a new typeface may be considered artistic by some, the United States Congress felt that it was too functional to be granted copyright protection. 37 CFR § 202.1(e) – Material not subject to copyright explicitly says that typeface is not eligible for copyright. This means movable type in its physical form cannot be copyrighted.

However, with technology comes an exception. Fonts on computers are typically controlled by computer software because the font needs to be scaled to the appropriate size. A file that contained every possible permeation of size and style of a font would be impractically large to store on early computers, so font files typically are pieces of software that contain computer instructions on how to draw a font. Computer software can be copyrighted. If someone copies the font software, the creator of the font could have a cause of action for copyright infringement based on that.

A really determined infringer could write their own font file to reproduce the font, but given the amount of effort that would take, it would probably be cheaper to purchase a license from the copyright holder.

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