16 January 2013
NBC Universal settles their font lawsuit with Brand Design Co, for a record $3.5 million
January 15th reports just in via the Hollywood Reporter and Extensis.com who announce a settlement by NBC Universal over an alleged license infringement of the Brand Design Co font ‘Chalet’
The exact terms of the settlement remain unknown. However the settlement figure, so far, will have the lawyers and designers peeping over the parapet like Meer cats and the designers thinking of instances where they or their firm could have potentially breached a font license agreement.
It should be noted that ‘fonts cannot be copyrighted’, however, in the USA the ‘software’ is subject to copyright and the license agreement which is only issued to the company purchasing the license, will contain restrictive usage terms. In the UK copyright of software is primarily protected as a literary work and when registered requires a copy of the source code to be submitted along with any other copyright materials such as graphics, user documentation and artwork that relates to the software.
Fonts and typefaces are purchased under license particularly by graphic design houses. Some are commissioned specifically by a corporate firm and provided in digital font files to a design supplier to enable them to use the correct typeface on all the brands marketing, advertising and packaging collateral.
Breach of use can occur when employees, freelance staff or students working on client projects are not advised that the fonts and typefaces are exclusive and under license. Designers moving jobs might also store typefaces under license to their former firm or a client of their former firm and use them on projects in their new employers firm who may not hold a license and are therefore at risk of breach of copyright.
In the case of Brand Design Co, USA, the settlement figure reached was based on $175 authorised license fee multiplied by an alleged 20,000 unauthorised downloads of its Chalet font, used across the NBCU network. The license holder was an NBCU subsidiary Oxygen Media who had purchased just a basic, 36 user Chalet typeface and font software license.
Uninitiated readers may be forgiven for believing a ‘font’ is the same as a ‘typeface’ but as font designers and typographers will quickly tell you, they are different.
Without getting too technical consider a ‘font’ as the digital file / software programme that houses the typeface and communicates to the computer and printer how the typeface should look including height, size, weight, spacing and so on. Thereby it is akin to any software programme painstakingly produced with a lot of time & skill involved. Fonts are predominantly released under license where license fees remunerate the font design house. License fees tend to be very reasonable and therefore every unlicensed use of a font denies the font Creator of their rightful license fee for use of their work. Some corporate firm’s commission and purchase exclusive fonts and typefaces which are unique to their organisation and its brand.
A typeface is the ‘design’ of the alphabet itself and numbers, symbols, characters are a holistic whole that make up the typeface. Everyone is familiar with typefaces but only in general context when they select a typeface from their PC/MAC/laptop drop down. Rarely do users consider the skills and experience that went into designing the typeface and creating the font to enable them to so easily select and use their aesthetically preferred typeface.
Thereby, as with any other exclusive design or piece of software issued under license unauthorised use will result in legal battles, costs and settlements.
In the case brought about by Brand Design Co, USA they sued over the alleged unauthorised use of their Chalet typeface font across NBC's websites.
The case does raise questions regards businesses and individuals knowledge and duty of care regards Intellectual Property. And it raises questions regards how IP owners communicate Rights Reserved more visually over and above the filed, and often unread, license agreement.
Personally, I would say that in most instances unauthorised usage is simply down to lack of knowledge regards IP / usage Rights, lack of communication in a clear and simple way and difficulty in contacting an IP owner quickly and easily to check usage terms.
These are some of the critical issues Creative Barcode is addressing. Further developments will result from the recently launched IP Innovation Fund http://www.creativebarcode.co.uk/newsitem?item=77
The IP Innovation Fund will focus on assisting Creators to use new IP mechanisms to communicate where Rights are reserved and make it easier for the business user and consumers to check usage terms and contact IP owners for permissions where required.
An imbalance exists if such law suits can be brought about when the Creators may not have exercised enough duty of care to make IP terms visually clear to users. Directors of design firms must also gain a better understanding of others IP utilised in their businesses by their staff and ensure their staff exercise caution. Likewise corporate firms engaging external Creative firms and or purchasing font licences must equally ensure their employees commissioning works and their suppliers understand the IP terms involved in font file sharing, image share, licensing agreements and so forth.
In the digital age these law suits will become more common unless the commissioners of works, their suppliers, their employees and the Creative industries at large sit up and take notice, take responsibility and take action.
See links for sources and further details
Endorsed by World Intellectual Property Organisation (WIPO) Creative Barcode® is a not for profit organisation with members in more than 24 Countries who use its digital system to attribute their work, protect and safely disclose concepts to third parties or communicate rights reserved in completed works displayed on and offline.
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