Eltra Corp. v. Ringer

In 1979, The United States Court of Appeals for the Fourth Circuit held in Eltra Corp. v. Ringer that typefaces are industrial designs which cannot exist independently as works of art.^[2]

1988: Policy Decision On Copyrightability Of Digitized Typefaces

In 1988, the U.S. Copyright Office published a policy decision specifically addressing attempts to register fonts. The Copyright Office stated that the representation of a glyph as pixels was not protectable expression, since the raw source typeface design was not protectable, and no original authorship occurred in the conversion process.^[3]

The policy decision described the digitization of typefaces as bitmap images, which was the leading format for fonts at the time. A limitation of this format is that different sizes of the font must have different bitmap representations.

1992: Registrability Of Computer Programs That Generate Typefaces

Having received applications to register copyrights for computer programs that generated typefaces using "typeface in digitized form",^[4] the Copyright Office revisited the 1988 Policy Decision in 1992. The Office was concerned that the claims indicated a significant technological advance since the previous policy decision. One advance was scalable font representations (Bézier curves). This format can output a font at any resolution, and stores its data as control points rather than pixels. The Office acknowledged that these fonts might involve original computer instructions to generate typefaces, and thus be protectable as computer programs, but ended saying that "The scope of the copyright will be, as in the past, a matter for the courts to determine."^[4]

Application of Policy Decisions and Regulations

King contended that the Regulation of 1992 was only a clarification of 1988's Policy Decision.^[1] The regulation stated that it "does not represent a substantive change in the rights of copyright claimants."^[3] Adobe contended that the 1992 Regulation's consideration of programs that generate typefaces covered its fonts.

Substantial similarity

King argued that after application of the Abstraction-Filtration-Comparison test to Adobe's font, there could not be any remaining protectable expression, since both the input to and output of the program was unprotectable. Adobe argued that each rendering of a character by the program was the result of an editor's choices, and thus were a result of original authorship.

Functional concerns

King contended that the selection of control points in glyph outlines was determined by efficiency, namely, the minimization of control points. Adobe contended that the outlines only determined some of the control points, and that there was creativity involved in picking the rest. One glyph may be expressed identically in a variety of ways with different numbers of control points.

Protection under patent

Typeface designs may be protectable by a design patent under United States patent law.^[6] The requirements are more strict than those for copyright.^[7] Term of protection is 14 years from filing date. SSI claimed that the six design patents Adobe held related to its fonts were invalid since they did not disclose any article of manufacture. They also claimed that the designs lacked the required novelty and nonobviousness to be valid. Adobe's response was that the computer program was a sufficient article of manufacture. A previous case, before the U.S. Patent and Trademark Office's Board of Patent Appeals and Interferences, had held that novel and non-obvious typefaces designs could be subject to a design patent.^[8] Adobe used the deposition of the font's designer to attempt to show that the font was novel and non-obvious.