Introduction to Typefaces, Fonts and Font Licensing
What’s the Difference Between a Font and a Typeface?
Many people confuse fonts and typefaces. A typeface is the design or appearance of a set of letters, numbers, and symbolic characters whose forms are related by repeating certain design elements that are consistently applied. Examples include Courier New and Times New Roman. A font is a physical embodiment of a typeface in a particular size, weight and style of a typeface, such as Garamond 12 point italic. In traditional typesetting, fonts were made from metal or wood. Today, fonts are created by software.
In the United States, typefaces are not protected by copyright law. Eltra Corp. v. Ringer, 579 F.2d 294, 298 (4th Cir. 1978). In contrast, font software is protected by copyright. See Adobe Sys. v. Southern Software, Inc., 1998 U.S. Dist. LEXIS 1941, at *16-1. As such, all fonts must be licensed.
Fonts Must Be Licensed
All use of font software is governed by license. The fonts that are included in computer operating systems are either owned or licensed by the operating system proprietor. For example, Windows comes with a collection of fonts installed as system-wide resources, and Microsoft does not impose any restrictions on their use. All other fonts must be separately licensed.
If a font is used without a license or beyond the scope of a license, claims can be brought for copyright infringement and breach of contract. Potential remedies include injunctive relief, actual or statutory damages, and attorney’s fees. Additionally, state law claims can be asserted for intentional or bad faith copying of typefaces. In fact, earlier this month, a court dismissed a claim for unfair competition involving a stylized ampersand, but allowed the plaintiff to replead its claims for unfair competition and violation of New York’s deceptive acts and trade practices act. Moshik Nadav Typography LLC v. Banana Republic, No. 20-CV-8325 (JMF), 2021 U.S. Dist. LEXIS 109142 (S.D.N.Y. June 10, 2021).
Font Licensing Basics
Font licenses can be obtained from type foundries, independent type designers, and type resellers. Each licensor determines its license terms, commonly set forth in an end-user license agreement, or EULA. License terms vary widely and the agreements may not clearly define what uses are permitted or not permitted. When obtaining a font license, it is important to understand the intended use of the font. For example, some licenses have restrictions that prohibit use of the font in logos and on products that are sold.
Common types of font licenses include:
Desktop license - allows a font to be installed on a computer for use in print or in static image formats
Webfont license - allows use in a website or email
Embedded license - allow fonts to be distributed in products like medical devices or cars or in software programs
Mobile app license – allows fonts to be embedded in phones and tablets
ePub license – covers use in commercial publications
Server license – enables web or cloud-based services and software as a service (“SaaS”) uses
Open Font License - a free font software license that permits the fonts to be used, modified and distributed freely
Some font licensors offer a basic desktop license with an option to purchase license extensions to cover additional uses outside the desktop license. When a use is not covered by an available license, the best practice is to seek to negotiate a custom arrangement or choose a font with a license that covers the intended use.