1 Although Eltra Corp. v. Ringer is the highest authority in the United States surrounding typeface
copyright, it can be argued that its applicability is questionable in light of other 'utilitarian' judgments in recent years.
An examination of these judgments can demonstrate that typeface designs no longer fit into the criteria of being
utilitarian, or that they lack creative or artistic aspects in addition to their function.
2 The context in which Eltra took place is also questionable, with both Court of Appeals and Supreme
Court judgments not reflecting the developmental and artistic process of the creation of type designs. Artistic and
decorative designs of recent years, thanks to the democratization of type production, demonstrate clearly - even to
those outside the industry - the creativity and effort involved.
3 Eltra also looked at the fact that copyright for typeface designs would be anticompetitive. Intellectual
property law, including the United States' obligations under the Uruguay Round and the Berne Convention, has changed. While domestic antitrust
law is still important, and has been relied on in a number of cases involving type companies, it is hardly sufficient to
deal with the IP issues involved.
4 Some products are inherently similar because of their function, external factors, or their nature (they are only
capable of being expressed in certain ways). Only the idea - not copyrightable - has in fact been taken. This is what
the Copyright Office has driven at in its statements. However, these statements have been based more on a
misunderstanding of the industry and on outdated precedent, which would probably not stand up in a new case. The
recent SWFTE suit was settled out of court - which did no favours for the industry wanting some ratio decidendi
from the Supreme Court, but which begins to hint at the fact that Eltra is beginning to look shaky.
5 The law has fallen down often in cases where the objective test has shown objective similarity, even when it
may be unavoidable. A Windows software program may look the same as a competitor's because the appearance is
dictated by the Windows environment, so Judge Learned Hand's "ordinary observer" test in Peter Pan Fabrics
would be redundant. It is agreed that a monopoly should not be granted on an idea alone, but typeface designs
are neither "just functional" or "just represent an idea". In their inquiry, the courts must take into account the nature of
the product. In Baker v. Selden, the expression was so necessarily incidental to the idea that it could not
be protected.
The courts should filter out from the realm of protection those elements dictated by
efficiency, function or nature as suggested in Altai. When this is done, what we are left with is artistic
expression. Arguably, this exists in typeface design. Function and efficiency are not adjectives in type designers' minds
when creating a new design.
6 It is argued that "utilitarian" objects should be granted less protection in the courts. It would be wrong to
protect the whole idea of a computer program organization as in Whelan, as a competing product would probably, by
nature, require the same or a similar organization. A computer menu hierarchy in Lotus Development Corp. is
probably not so much a method of operation but something so utilitarian and dictated by necessity. Necessity, in this
case, is the familiarity of users with Windows program. Alternatively, the court could state that the Lotus 1-2-3 menu
hierarchy is trite and language cannot be copyrighted. Or the play and stop buttons on a VCR. These are how the
Courts of Appeal and the Supreme Court have defined utilitarian in most recent years. Parallels with typeface design
cannot be drawn because of legitimate artistic expression that are inherent in their creation.
7 Less "utilitarian" objects - to use the American functional test is misleading as many objects are both capable of
varying expression and function (an Alessi teapot illustrates this) - demand greater protection. These objects are those
capable of different expression.
8 It is further submitted that the descriptions of the process have done little to enhance the artistic aspects of
typeface design. In a modern context, in most cases, the decisions about the utilitarian function rank below the
meaning or the expression of the typeface.
9 Therefore, it is wrong for the Copyright Revision Act of 1976 to not give protection for typefaces under US
federal law, by the nature of the product. Industry opinions and the moral right (section
B) should also guide the Copyright Office and the courts on this matter.
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