The Knockoff Economy (24 page)

By making books cheap, and pirated copies even cheaper, the invention of the printing press created the economic realities that led to modern copyright law. But Gutenberg’s printing press also brought another important change. Handwriting was inherently variable. The invention of printing was accompanied by the invention of movable type, and that meant that the visual expression of language was increasingly regularized by the use of
typefaces
—the name given to the letter forms carved into wood or metal blocks that early presses used to imprint ink on paper.

The technology of typefaces has of course changed dramatically as printing moved from mechanical to electronic. Typefaces now exist mostly as bits of computer code. And in today’s computerized world, most people refer to typefaces as “fonts” (except for typographers and graphic designers, who recognize a technical distinction between the two). We’ll use the more common term.

The significance of the change in our visual environment and culture from the advent of fonts is not trivial. Fonts enrich language by allowing us to convey subtle messages not carried in the text itself.
¹³
Fonts can be restrained or florid, cool or warm, reassuring or arresting, and they shade the meaning of the text in which they are set. That is one reason so much effort has been poured into font design, and why so much attention is directed to choosing the right font for wedding invitations, corporate logos, and store catalogs. Fonts are valuable because they shape they way we communicate.

The earliest fonts imitated then-current styles of handwriting.
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They had pronounced serifs (flourishes at the end of strokes) and marked differences between thin and thick sections of the letters, a calligraphic style that proceeded naturally from the dominant writing technology of the time, the quill pen. Over time, fonts moved away from mimicry of handwriting. Fonts diversified into many thousands of varieties, some optimized for legibility in reading (such as for books and newspapers), and others for distinctiveness as display type (such as for use in signs).

By the mid-20th century the reigning aesthetic dictated that fonts have clean lines and no serifs. A very famous font from this period—and probably the only one to be the subject of its own documentary—is Helvetica, a sans-serif type developed in 1957 by Swiss typographer Max Miedlinger.
¹⁴
Helvetica may be the most widely used font in the world and is emblematic
of typographic modernism. It’s no surprise to see a variant of Helvetica—Helvetica Neue Light—in use on Apple’s iPod, for example. The font fits the marketing message that Apple wants to send: clean and cool.

Helvetica has been widely imitated, perhaps most famously by Microsoft, which knocked off Helvetica to avoid paying licensing fees for its early word processing software. The result, Arial, has become a famous font in its own right. Arial imitates Helvetica very closely. In the following illustration, the black letters show the two fonts superimposed.

FIGURE 4.1 Helvetica vs. Arial

As this shows, Helvetica and Arial are not identical. They are certainly alike enough, however, that if the general rules of copyright applied, Arial would almost certainly be judged “substantially similar” to Helvetica—and therefore illegal. But copyright does not apply in the world of fonts. Its absence has allowed the wide proliferation of subtle variations on popular fonts. The ordinary consumer may overlook these variations, but for the graphic designer looking for just the right font for a particular job, they are invaluable.

Another familiar, yet very different, font is Times New Roman.
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Times New Roman was designed to be highly legible using the crude newspaper
printing techniques prevalent in the early 20th century, and to take up less space than comparably legible fonts.

Here is a sentence set in Times New Roman.

The impression this font gives is entirely different from Helvetica’s. Where Helvetica is clean and modern, Times New Roman is stately and suggests solidity and credibility—exactly the impression that a “newspaper of record” wishes to make. It is not surprising, then, that there are many variations on Times New Roman. A popular example is Georgia, a design commissioned in 1993 by Microsoft. Georgia is adapted from Times New Roman but with wider serifs. Again, Georgia is similar enough that it would almost certainly break the law if copyright law applied to fonts. The absence of copyright, however, allows designers to imitate fonts like Times New Roman and create subtly different, but overall very similar, families of fonts.

Fonts, like recipes, and fashion designs, can be freely and legally copied. They are excluded from copyright protection for a lot of the same reasons fashion designs and recipes are. For purposes of copyright law, fonts fall within the category of “pictorial, graphical, or sculptural works.” These are not protected if they are “functional,” and fonts are considered functional in the simple (or perhaps simpleminded) sense that they are used to construct words and sentences. But for fonts, there would be no books.

Though fonts are clearly functional in this narrow sense, they may still be protectable by copyright if their aesthetic appeal is “separable” in some way from their utilitarian purpose—much like the jewelry designs we discussed in
Chapter 1
. But given that fonts, to perform their function, must be legible, the utility of fonts is pretty much unavoidable. When Congress passed the current copyright law, the accompanying report from the House of Representatives recognized this basic fact, stating that the relevant committee “does not regard the design of a font… to be a copyrightable ‘pictorial, graphic, or sculptural work’ within the meaning of this bill and the application of the [separability] dividing line.”
¹⁵
In the years since, the United States Copyright Office has refused to register font designs. The few cases that have considered the issue have followed suit, ruling that fonts are uncopyrightable.
¹⁶

So fonts are unprotected by copyright law.
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Is there any law that does protect them against copying? In theory, a truly original font could be protected by a design patent, but for practical reasons patent has only marginal relevance. Patent’s novelty requirement would limit protection only to the most unusual fonts. But the most valuable have almost all been attractive but subtle variations on well-known designs. And a very unusual font would most likely be very hard to read.

Trademark law has even less relevance.
¹⁷
While the
names
of fonts can be trademarked, fonts themselves cannot. Few consumers can even identify a single font by name, much less associate one with a particular producer. The absence of any consumer association between a font and its producer—what is known as “secondary meaning” or “acquired distinctiveness”—essentially eliminates the possibility of using trademark to protect fonts from copyists.

For hundreds of years the inapplicability of copyright law to fonts didn’t really matter, because the technology of printing made fonts very hard to copy. Originally, type was produced in the form of wood blocks and then metal letter shapes. And from the invention of movable type in the 15th century until the early 19th century, the effort involved in designing a font was only a small fraction of the total effort involved in producing print-ready type. Fashioning the metal letterforms would take a punchcutter—a lost art that combined sculpture, metallurgy, and smithery—nearly 800 hours of full-time work.
¹⁸
Under these conditions, plagiarizing made little sense, because the work necessary to reproduce the print-ready type meant that copyists and originators faced roughly equivalent costs in producing the finished product.

This changed only at the end of the 19th century with the introduction of photography and something called the pantograph. These technologies, used in combination, allowed easier reproduction of fonts by relatively unskilled workers. But the potential for really cheap font copying arose only
in the early 20th century with the spread of the photogravure method of typesetting—or “phototype.” Using this technique a copyist could photograph a letter form and then chemically etch that image into a metal plate. The process reduced the cost of copying a font by 90% or more.

So from the early 20th century on, fonts have been relatively easy and cheap to copy. And in the late 20th century, copying became easier and cheaper still. As publishing shifted from mechanical to electronic technologies, fonts also shifted from the physical to the virtual. Fonts exist today not on metal blocks, but as computer code. Once fonts became digital, copying involved a few keystrokes—or, at most, a bit of work with widely available software.

And yet despite the ease of copying fonts—and many individuals do copy them enthusiastically—creativity in fonts continues to thrive. The number of fonts is difficult to count accurately. But the several attempts that do exist reveal a thriving creative environment. A 1974 estimate pegged the number of fonts at 3,621.
¹⁹
A 1990 survey identifies 44,000 fonts;
²⁰
a 1996 estimate ranges between 50,000 and 60,000;
²¹
and in 2002 that number was revised to 100,000.
²²
Some current estimates are as high as a quarter million.
²³
A quick Google search suggests that even only counting fonts that have been digitized, the growth rate has been substantial. As of April 2012, the Web site fonts.com lists 170,232 computer fonts for sale. That number does not necessarily correspond to the number of
distinct
fonts; as that term is used on fonts.com, it typically refers to a single typesize or weight of a font “family.” Nevertheless, the number of distinct fonts is quite large. The Web site dafont.com lists more than 11,500
free
fonts.

In any event, it is clear that while fonts are easy to copy, and the law does not prevent copying, there is still significant creative effort invested in the design of new fonts. If the 1974 estimate is at all accurate, and if 100,000 serves as a conservative figure for the current number of fonts, then there has been an increase of more than
2,700%
in the last 35 years. Moreover, the rate of increase in the production of new fonts seems to be growing, not slowing.

How can it be that innovation in font design is booming in the face of cheap and virtually uncontrolled copying? The digitization of fonts makes copying far easier. The law does not impose any meaningful deterrent to copying. The monopoly theory of IP says that easy and legal copying destroys the incentive to create. And yet the numbers suggest that more
fonts have been designed since the rise of the Internet than in the previous five centuries.

A fascinating study by Blake Fry (written when Fry was still a law student) offers several interesting takes on this question, many of which track arguments we make in this book.
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Fry notes that fonts are in some ways like fashion design. Font trends rise and fall. Fonts are also like food: they come bundled with another product that is harder to copy. In the case of food, particular dishes come bundled with the preparation and ambience of a restaurant. With fonts, particular font designs often come bundled with graphic design software. And they’re like jokes, in that their production is governed by a set of norms that exist in a particular creative community and that blunt the harmful consequences of copying. Let’s briefly consider some of these arguments.

Creating fonts before the digital revolution required a lot of investment in time and equipment and probably a team of skilled craftsmen. After digitization, font designers can work solo—all that is needed is some design talent, a computer, and inexpensive software. With low capital costs, and distribution via the Internet, the cost of creativity has fallen markedly. And so too have barriers to entry—would-be font designers no longer need specialized equipment to get into the trade. The digital revolution means that barriers to piracy have fallen too. But since the costs to create new fonts have shrunk so much compared to what they were pre-digitization, the price of fonts can still fall—and they have, significantly. Availability of cheaper (and in many cases free) fonts does not eliminate piracy, but it helps to blunt its appeal, just as the growth of affordable music downloads via Apple’s iTunes has led some former music file-sharers back to the legal market.

Likewise, we’ve seen significant growth in the number of font designers. Before digitization, Fry claims that there were perhaps 100 font designers, and, importantly, virtually all were professionals. There are more professional font designers today—perhaps five to ten times as many as before digitization—but the most important change is the entry of many thousands of amateur font designers. Thanks to digital technologies, amateurs have become a significant source of new font designs.