font typeface used on UK hosted website

[Musicman_Dan]

Hi,

Thanks for such an informative website. Apologies - I had posted this question elsewhere as I hadn't worked out how to create a new post!

I have a small UK based business and UK hosted website. I was approached by a seemingly legitimate agent of a US company who holds the copyright for a font that I used on the website, claiming a copyright infringement took place. The font was provided to me as part of Apple's operating system that came with our computer.

Would you be kind enough to check if my understanding below seems correct please, and share your thoughts?

From what I can deduce from your previous posts, UK legislation allows for me to use the font / typeface on our website (in terms of how our text is displayed) irrespective of the US copyright as the font was legitimately obtained as part of the software supplied when we purchased the mac. Is that right?

It is possible (and I'm trying to establish) that the ttf font file may have been uploaded to the hosting server in order for the website to display the font correctly. Does that fall within the same legislation or is it treated differently as it is technically a piece of software? If the file was uploaded, then it may have made it available for others to seek out (from the server) and download. I'm not sure if that changes anything?

I have since checked what the licensing information states within the "font book" application supplied by Apple. It includes the following:

Embedding
Preview and print embedding. This font may be embedded in documents and temporarily loaded on the remote system. Documents containing this font must be opened “read only”; no edits can be applied to the document

There seems (in my head at least) to be some contradictory information out there - especially as much of it is posted from the US - in terms of what we can do with fonts on websites and where we stand in relation to the font files themselves required for the font to display correctly.

I had absolutely no intention to breach any copyright - as a creative myself, I respect the work of others. But I was surprised to learn that a font supplied as part of a computer system I had legitimately purchased may it would seem not be used on a website without additional licensing.

I would really appreciate your reply on this, just so I have another viewpoint. I have to reply to the company's constant flow of emails! In the meantime, I did purchase their web-font (really as a gesture of goodwill at this stage and without any admission of guilt!) and have removed the font from the site anyway.
Thanks!
Dan

[AndyJ]

Hi dan,

As you have found, the law regarding fonts (this term is preferred to typefaces when we are talking about electronic fonts) is very complicated. And despite the fact that there was an attempt at an international treaty to set out the rules for protecting fonts, in fact each jurisdiction has ended up with its own individual set of rules.

We can immediately set to one side all the legislation which refers to fonts (aka typefaces) implemented by mechanical means, such as letterpress, line printers, daisywheels and IBM Selectric typeballs. We are just concerned with the electronic representation of fonts. And since you are based in the UK, the applicable law is that of the UK, notwithstanding the fact that your website is available to users anywhere in the world. The relevant sections are 54-56 of the Copyright Designs and Patents Act, although sections 54 and 55 only apply to the physical 'articles' relating to fonts eg a CD ROM containing some soft fonts, but not the intangible font descriptors themselves. The operative section is section 56 which appears under the heading 'Works in electronic form' The section covers more than just fonts, but its principal application is to that subject.

56 Transfers of copies of works in electronic form.

(1) This section applies where a copy of a work in electronic form has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to copy the work, or to adapt it or make copies of an adaptation, in connection with his use of it.

(2) If there are no express terms—

(a) prohibiting the transfer of the copy by the purchaser, imposing obligations which continue after a transfer, prohibiting the assignment of any licence or terminating any licence on a transfer, or

(b) providing for the terms on which a transferee may do the things which the purchaser was permitted to do,

anything which the purchaser was allowed to do may also be done without infringement of copyright by a transferee; but any copy, adaptation or copy of an adaptation made by the purchaser which is not also transferred shall be treated as an infringing copy for all purposes after the transfer.

(3) The same applies where the original purchased copy is no longer usable and what is transferred is a further copy used in its place.

(4) The above provisions also apply on a subsequent transfer, with the substitution for references in subsection (2) to the purchaser of references to the subsequent transferor.

Briefly what this section is saying is that if you are using a licensed copy of a font and there are no specific terms and conditions laid down which limit the onward use of the font, neither you nor a visitor to your site infringe any copyright in the font by transferring or making available works made using the electronic font. As you have said Apple made the ttf font concerned available under licence and did include certain stipulations under the heading Embedding, namely that the text document which you produced must be read only and may not be made editable by a third party. That would be fine if you were just producing a Word .docx or a .pdf where such parameters can be preset, but it obviously doesn't apply to how a browser interprets a font when it displays it on a screen, or if the enduser chooses the save the text on their device. To that extent you have fully complied with the terms set out in the licence from Apple. And they should know since they are the owners of the ttf format, which as far as I am aware is not protected intellectual property per se (eg there is no current patent on it).

This brings us on to .ttf files themselves. A ttf file is data. It consists of tables which describe the geometry to be followed by the engine which has to render the font either on a screen or via a printer. If a browser does not hold a copy of the particular ttf file it will rely on the device's operating system to provide it, and if the OS also lacks the ttf, the text will be rendered in a default font which approximates to the characteristics of the desired font. Something similar happens with printers although they are not strictly relevant here. The ttf standard is freely available for any typeface designer to use to implement their own font, which may or may not be protected under copyright. In this case it appears that copyright is claimed, but nonetheless since the font was legitimately made available to you under licence via Apple, then section 56 applies. The way that a typeface designer can limit, should he choose to do so, the embedding of his particular .ttf is to set the so-called embed tag within the file such that it will not be embedded in a piece of text created by the licensed user (see this Wikipedia article for an explanation of the embed tag). We have to assume that since you were able to transfer your text in the desired font to the website and it appeared correctly when viewed by a browser, the ttf did not have its embed tag set to prevent this or alternatively the browser or OS etc already had access to the ttf in order to render the font correctly. Section 56 applies to a ttf file as much as it does to any other proprietary electronic format, such as the aforementioned .docx and pdf. A ttf is not software as defined in the EU Software Directive or in UK law.

On that basis I cannot see any grounds, under UK or for that matter EU law, for an infringement claim here. I suspect that the reason you have received a claim is due to the different law which may apply in the USA. I do not have suffiicient knowledge of the US caselaw on this fairly niche subject to know if such a claim would have any chance of succeeding in the USA. The only case on the subject of ttfs that I have been able to find is called Agfa Monotype Corp. vs Adobe Systems Inc in which it was alleged that Adobe had sold software which effectively stripped out the embed tag from ttf files for fonts owned by Agfa Monotype. Agfa lost the case. However that case contains no facts relevant to your issue, so I don't think we can draw any conclusions from it.

[Musicman_Dan]

Firstly, thank you very much for your extremely informative and detailed reply.

What would have been helpful is for me to have actually used the correct language in the first place! The communication I received actually referred to an alleged use of the font on my website without a valid licence. I don't think they've mentioned the term "copyright" but they implied that the ttf file may have been copied to the website host. I had put 2 and 2 together to make 5 by assuming that meant it was an alleged copyright infringement when it would seem it was an alleged licence infringement they were referring to. I'm so sorry for my inaccurate initial post and for any time wasted (although your explanation is extremely helpful and is the only source I can find that explains the detail relating to font copyright in the UK - so it will no doubt help others!)

I should also clarify that it is a font foundry - rather than Apple - that has contacted me.

Honestly, I do not fully understand the links between copyright and licence in terms of fonts. In the 'creative' world I'm in, it appears to be much simpler: my understanding is that a licence would normally need to be granted in order to use copyright material in a particular fashion, else it may lead to a copyright infringement. But it appears more complicated when it comes to font usage, particularly when the font and licence may involve both Apple and a third party font foundry.

I have now found the licence from Apple that references the usage of the fonts they provided - Sorry but I hadn't share those terms in my original post. I have copied the relevant section below:

E. Fonts. Subject to the terms and conditions of this License, you may use the fonts included with the Apple Software to display and print content while running the Apple Software; however, you may only embed fonts in content if that is permitted by the embedding restrictions accompanying the font in question. These embedding restrictions can be found in the Font Book/Preview/Show Font Info panel.

So with that Apple licence paired with the embedding restrictions referenced previously, does this change anything, taking into consideration that it is the alleged licence infringement they are referring to? My brain is rather frazzled!

If such actions may lead to a potential licence infringement, would that be with Apple or the font foundry, or both? As far as I was aware, I never had a licence directly with the font foundry (which is why I assumed it was a copyright infringement they were referencing when they were asking about a licence) and was relying on the licence supplied by Apple.

Apologies if I'm getting in a muddle here. As others have said, this really is an incredibly helpful forum, especially for UK individuals and small businesses who are struggling to make ends meat through legal means and are then faced with potentially overwhelming infringement accusations they never expected! So thank you again.

Dan

[AndyJ]

Hi Dan,

No need for apologies. It is complicated so there is every reason for your brain to be frazzled coming into the subject cold.

Put simply copyright infringement occurs when a person copies, distributes or makes available to others a copyright work without the permission of the copyright owner. Permission is usually granted by means of a licence. A licence can have all sorts of terms which restrict the extent to which the work may be copied, distributed etc. For example it was common in the pre-internet age to limit the use of a work such as a photograph to a particular territory, eg Europe or the USA. A licence can also have a temporal restriction, eg is valid for a year etc.

All of this applies to fonts, which are technically speaking viewed as artistic works. The ttf file is merely the container in which the font is delivered electronically. It is in effect the recipe which tells a computer how to render each character on screen.

Turning now to your use of the font in question. You appear to have a valid licence supplied by Apple to use this font. This will be what is commonly named an End User License Agreement or EULA. Apple in turn will have licensed the font from the font forge which created it. The licence between Apple and the font forge will probably have different terms to the one which you were supplied by Apple, however that doesn't concern us here. Your relationship is with Apple and that 'contract' is determined by what Apple put in its terms and conditions. If it failed to pass on any restriction stipulated by the font forge, that is not your problem.

As Apple have said in their blurb, 'These embedding restrictions can be found in the Font Book/Preview/Show Font Info panel.' that is where you need to look if you haven't done so already. However I assume that is where you found the text which you quoted in your first posting: 'This font may be embedded in documents and temporarily loaded on the remote system. Documents containing this font must be opened “read only”; no edits can be applied to the document'. If those are the only restrictions which Apple included, then we just need to examine if you have complied with those terms. There is minor problem with this wording in that it doesn't define 'font'. For copyright purposes it is only the appearance of the letters which is protected, not the recipe which allows a computer to create the shape etc. However the only way to physically ccommunicate to a device what a font looks like is a file like a ttf. There are of course several other types of font descriptor formats, such as Adobe Type 1. In an ideal world a ttf file would have its licence terms within it. But that can't be done without making the file too big and clumsy. Instead, within the file header there is a single byte of data which is the embed tag. This can be set to either allow embedding or not. However that only works where the font file is actually being read by software such as Microsoft Word while displaying the font on screen. The tag then tells Word whether or not to embed the ttf in the document when you save the text file. Let's assume in this example, the ttf may not be embedded. Since the ttf remains on your computer you can open the document again later and Word will display the font correctly. However if you send the .docx file to a colleague in an email, and his computer does not have that particular ttf, the text will be displayed in some default font. All the attributes of the letters (eg size, bold, italic, compressed etc) will be present and if the original font had serifs, Word would try to display the text in a different font with serifs.

So far, so relatively simple. Ideally it would be useful to know exactly how the embed tag was set for this specific ttf when it was provided to you by Apple. I am not aware of a specific viewer which allows you to look inside a ttf file and see how the various parts of the header are configured. But really, none of that is your concern. You merely have to abide by the terms of the licence from Apple. As I said in the earlier posting, the terms you quoted concerning read only etc cannot be directly applied when text is put into a page of code (usually HTML), which is how a browser knows how to present the page on screen. To that extent by uploading your text, say having composed it in Word or AppleWorks for example, you merely tell the website which letters and their characteristics (eg size, bold, itallic) to display. Similarly if you type the text straight into the code of a website, you can only implement the particular font if the stylesheet which defines that part of the website supports the ttf. I haven't coded HTML for many years so my example is out date, but if you used a program such as Dreamweaver to write your code, then it will possibly have provided some specialist fonts, again under licence. Today you might use drag and drop methods on a site like WiX, which possibly also supplies some additional fonts. But I am assuming you didn't use third party software to build the site, and so you needed to embed the tff yourself within the code so that any browser would be able to display the font correctly. Apple's licence does not say you can't embed; it merely says that if you embed the ttf, you need to make sure that the resulting text is read only and can't be edited. Obviously this is exactly what happens when the web page is displayed on the user's screen. He/she cannot alter the text on your website (unless they have hacked it first and altered the coding!). The user's browser temporarily downloads the ttf in order to display the text on screeen, and when the page is closed or the cache is cleared, the ttf is deleted. That meets part one of Apple's licence terms. A user can download the text by highlighting it and saving it but that will not copy the font characteristics as described in the ttf, just the underlying characters. Hence you have complied with Apple's terms.

There is one other scenario which might apply. If you make a graphic which includes text in the particular font and upload the graphic as a .jpg for example, then again the user cannot edit the graphic in a way which allows them to create new text in the same font, so again you will have complied with the Apple terms. Obviously this method does not require the ttf to be embedded in the website or to be downloaded to the user's computer/device.

I'm sorry this is so long-winded, but if you are going to have to argue your case with the font forge it's important that you fully understand what is going on here. However, I would suggest that you could just tell the font forge to piss off, since you have a valid licence from Apple and you have complied with that licence. If they have a problem with that, they need to take it up with Apple. I suspect they won't, and even if they did, I think Apple would probably also tell them to piss off.

Good luck

[Musicman_Dan]

Hi Andy,

Thank you so much - that is incredibly helpful and, while I totally appreciate that this forum shouldn't be viewed as "legal advice" as such, I feel very reassured by your viewpoint. It has certainly made matters much more transparent and armed me with sufficient an understanding to challenge the font foundry's claims. It is helpful to know that it seems unlikely that I have breached any copyright thanks to the licence in place with Apple, and useful to know (as I'd hoped) that, being a UK company trading in the UK, I am subject to UK - rather than US legislation.

I will let you (and your readers) know if there is any further follow-up, in case it helps others. I hopefully won't need to trouble you again, but you never know - matters sometimes take interesting turns!

Thank you very much!

Dan