conversion from analog to digital is not an automatic computer process—different printers read different computer languages and this must be factored into the translation; the translation is a derivative work.
Another comment states that programs to generate typeface design can be written in various languages and for many different machines with distinct programs. Typeface programs, it is argued, are original and creative and should be protected.
4. Policy Decision and Rationale
The proponents of copyright registration for data or other elements related to digitized typefaces seek, as they must, to present arguments for protection of data, or program instructions, or hybrid works consisting of both data and instructions that are entitled to copyright apart from the uncopyrightable typeface designs and typefonts. Both the Congress and the Fourth Circuit Court of Appeals in Eltra Corp. v. Ringer decided that analog typeface designs are not now copyright subject matter. The Copyright Office concludes that typefaces created by a computerized digital process are also uncopyrightable. Like analog typefaces, digitally created typefaces exhibit no creative authorship apart from the utilitarian shapes that are formed to compose letters or other font characters.
Congress has not only rejected copyright protection for typeface designs. It has refused to enact a more limited form of protection, the proposed "design protection law," which might be a Vehicle for typeface design protection.[1]
In making this decision on registration for digitized versions of typefaces, the Copyright Office has been conscious of the need for caution to avoid a decision that would undermine the clear congressional and judicial findings that typeface designs are not copyright subject matter. Moreover, a typefont is not copyrightable since it constitutes the useful article itself.
The issue then is whether the process of computer assisted digitization of uncopyrightable typeface designs and typefonts creates compilations of data or computer program instructions that are copyrightable and separate from the uncopyrightable elements. We conclude that computer programs used to control the general digitization process and that otherwise meet the standards for protection are registrable notwithstanding their use in generating unprotectible typefonts, but the claim to copyright must exclude any data that merely depicts the typeface or letterforms.
Although most comments favored protection of the data/instructions actually depiciting particular digital typefonts, our analysis of the copyright statute and relevant judicial precedent, as well as the arguments of the comments that opposed registration (and even the comments of some of those supporting registration of some elements), convinces us that any data that merely transforms an analog visual representation of a typeface or letterform into a digital electronic typefont or letterform is not protectible as a work of authorship.
The Copyright Act, 17 U.S.C. 101 et. seq. (1976), defines the term compilation as "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." 17 U.S.C. 101. To be an original work of authorship, a compilation must include subjective elements of human selection and arrangement. Financial Information, Inc. v. Moody's Investor Service, Inc., 808 F.2d 204, 206–08 (2d Cir. 1986), cert. denied, 108 S.Ct. 79 (1987). Because the typefont data is determined by the ultimate shape of the typeface character, and requires de minimis, if any, selection and arrangement, it does not qualify as a compilation or any other original work of authorship.
Proponents of registration argued that the data representing a digitized typeface should be copyrightable because, after the initial rendering of the letterform into electronic digital form, there is selection, coordination, or arrangement of data/instructions in order to generate an acceptable, final typeface image. One commentator drew an analogy to "connect-the-dots" or "fill-in-the-blanks" illustrations in children's books. The analogy is unpersuasive. A "connect-the-dots" illustration is copyrightable only if the "connected" illustration is a copyrightable pictorial or graphic work. In the case of typeface "connect-the-dots," the "connected" illustration is an uncopyrightable typeface, and the connecting process is indistinguishable from the creation of the typeface design itself.
Proponents also argued that the data representing a digitized typeface is copyrightable even though the end result—a typeface or typefont—is uncopyrightable. By analogy to a cookbook, they argued that the explanation and illustration of recipes is copyrightable even though the end result—the food product—is not. The Copyright Office agrees, of course, that original explanations and illustrations in cookbooks are copyrightable. But neither lists of ingredients nor the method of preparing the food product is copyrightable. The Copyright Office finds that digitized typeface data is more like an uncopyrightable list of ingredients than a copyrightable explanation or illustration of a process.
Before the advent of digitized typeface technology, arguments were made that, in creating new typeface designs, artists expended thousands of hours of effort in preparing by hand the drawings of letters and characters that ultimately would lead to the creation of an original typeface design. After several years of consideration and a public hearing, the Copyright Office found that this effort did not result in a work of authorship. The Office refused to register claims in typeface designs or in the drawings of the letters and typefont characters because the design choices were responsive to the functional characteristics of typefonts used in high-speed printing. That is, no work of authorship existed separate from the utilitarian aspects of typefonts and letterforms. That decision was upheld in Eltra Corp. v. Ringer.
Under earlier technology, typeface designs were fixed in wood blocks, in cold metal, or in film fonts. With computer-digital technology, the typeface is fixed in an electronic font. The Copyright Office finds that no work of authorship is created by the process that fixes or depicts a particular typeface in a digital electronic form. Like analog typeface design, the design choices or any selection of data involved in the bitmapping, outlining, and stroke definition techniques are limited by the objective of rendering or fixing the uncopyrightable electronic font. This finding applies both to the initial scanning of the letterforms and to the subsequent refining of the typeface by "curving," "connect-the-dots," and other techniques. The data created is an electronic depiction of the typeface. In fact, there are fewer authorship choices involved in transforming an existing analog typeface to an electronic font than in using the digitization process to create a new typeface design. Yet clearly the typeface design and the process of creating it are uncopyrightable whether the process is digital or analog. The use of the computer in this process neither
- ↑ The Senate design bill, S. 791, would specifically protect typeface designs. The House bills (H.R. 379; H.R. 1179; H.R. 1003) omit specific reference to typeface, but the definitions of the bills probably include typeface protection
