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313.3 (D) Typeface and Mere Variations of Typographic Ornamentation

 

313.3 (D) Typeface and Mere Variations of Typographic Ornamentation

 

The copyright law does not protect typeface or mere variations of typographic ornamentation or lettering. 17 U.S.C. § 102 (B); 37 C.F.R. § 202.1 (A), (E).

 

A typeface is a set of letters, numbers, or other symbolic characters with repeating design elements that are consistently applied in a notational system that is intended to be used in composing text or other combinations of characters. H.R. REP. NO. 94-1476, at 55 (1976), reprinted in 1976 U.S.C.C.A.N. at 5668. Typeface includes typefonts, letterforms, and the like. Registrability of Computer Programs that Generate Typefaces, 57 Fed. Reg. 6201, 6202 (Feb. 21, 1992).

 

The U.S. Copyright Office cannot register a claim to copyright in typeface or mere variations of typographic ornamentation or lettering, regardless of whether the typeface is commonly used or truly unique. Likewise, the Office cannot register a simple combination of a few typefonts, letterforms, or typeface designs with minor linear or spatial variations. In Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978) the Office refused to register a typeface design under the 1909 Act. Both the District Court and the Court of Appeals affirmed the Office’s decision, noting that “typeface has never been considered entitled to copyright under the provisions of [the 1909 Act].” 579 F.2d at 298. The Fourth Circuit noted that many parties have asked “Congress to amend the law in order to provide copyright protection to typeface” and “[j]ust as consistently Congress has refused to grant the protection.” Id. Congress addressed this issue when it drafted the 1976 Act and concluded that typeface is not copyrightable. The House Report expressly states: “The Committee does not regard the design of typeface, as thus defined, to be a copyrightable ‘pictorial, graphic, or sculptural work’ within the meaning of this bill ”

H.R. REP. NO. 94-1476, at 55 (1976), reprinted in 1976 U.S.C.C.A.N. at 5668-69.

 

For the same reasons, the Office cannot register a claim that is based solely on calligraphy because calligraphy is a stylized form of handwriting that is a mere variation of typographic ornamentation. Although calligraphy in itself is not copyrightable, a literary work, a pictorial work, or a graphic work that contains a sufficient amount of original authorship may be registered notwithstanding the fact that it is executed in calligraphic form.

 

As a general rule, the mere arrangement of type on a page or screen is not copyrightable. See Section 313.3 (E). However, if the arrangement produces an abstract or representational image, such as an advertisement that uses letters to create a representation of a person, the Office may register the claim provided that the resulting image contains a sufficient amount of pictorial expression.

 

The Office may register computer programs that generate typeface(s) provided that they contain a sufficient amount of literary authorship. However, the registration does not extend to any typeface or mere variations of typographic ornamentation or lettering that may be generated by the program. See Registrability of Computer Programs that Generate Typeface, 57 Fed. Reg. at 6202. For a discussion of computer programs that generate typeface, see Chapter 700, Section 723.