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Can I use fonts in my design on t-shirts that are sold to the public?

Los Angeles, CA |

If I buy a licence for fonts, can I use those fonts in my t-shirt designs (commercial mass produced shirts)?
And can I use these fonts in my logo?

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Attorney answers 4

Best Answer
Posted

Yes, you should be able to use the fonts for commercial purposes. While it is true that fonts are licensed, typically the limitations are only on your ability to embed the fonts in documents and not on what you can do with the printed version of the fonts. Rare would be the case that a license to a font would exclude commercial use of the printed version. That would be like buying paper that can't be used for marketing.

Posted

It is a near certainty that the form of license you will be asked to sign will address this question ... and probably clearly, too. So READ it. If it is not to your liking, it is not impossible that you can work out a deal. After all, you are not selling to Wal Mega K Town. If you DO intend to sell to a big box retailer, then you absolutely do need to negotiate this.

You are in business. This is business.

Kind regards
J

All comments on this site are 'in the cloud' and do not form an attorney-client relationship of any kind. Just consider them ideas for discussion. J

Posted

Simple questions, like yours, sometimes require a very complicated factual and legal analysis to answer.

First, typeface designs ["fonts"] are not copyrightable. Font designers cannot, therefore, assert that the reproduction and/or publication of any of the fonts they create is copyright infringement.

HOWEVER, the software that creates fonts can be copyrightable. It is now a legal reality that the typical consumer software transaction is a "license" arrangement and not the "sale" of that particular, transferred copy of the software. In short, the "buyer" buys a license to use the software -- he does NOT buy the physical copy of the software that he takes home [even though the buyer never has to give that particular copy back to the seller, or to anyone].

If your software license does not restrict how you can use the software that creates the font then I see no legal restrictions on your use of the font to create your tee shirt designs.

Moreover, it is certainly within the possible that you do NOT need some other person's software to create the font that you like but, rather, you can either create your own software to make the font or you can create a hard copy set of the symbols that you want to use in that font. In those situations, as well, I see literally no legal restrictions on your use of that font to create your tee shirt designs.

Let's assume, however, that you must buy a license to someone else's software in order to create the font that you intend to then use to create your tee shirt designs. The question in that situation is [as noted by my colleague] whether your license to use the software restricts how you can use THE OUTPUT that you create when you use the software.

Let's assume one of your license terms says that "your use of this software is solely for your personal use -- specifically, you shall not use this software to create any product that you will then offer for sale." But you do anyway.

The question your own attorney must answer is whether that license provision is enforceable under the state law that controls your license agreement. That question is very difficult to answer -- because it requires consideration of that state's contract, antitrust, and unfair competition law. Although I have not done that analysis under California law my instinct tells me that provision would be an unreasonable restraint of trade which a California court would not enforce [permitting the software licensee to use the software to create products that are then sold]. Your situation obviously requires consideration of the facts that are unique to your license.

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

Posted

Mr. Caldwell is correct. The license you agreed to when you purchased the fonts will be controlling. Try and find out what it says. (Sometimes it can be hard to find these later.)

Fonts are copyrightable as artwork. Fonts for graphic design often carry licensing similar to what you might find on a stock photo website such as iStockPhoto or ThinkStock. The scope of what you can use the font for may also vary.

My general experience has been that commercially sold fonts tend to come with licenses that allow commercial use. However, I have come across some fonts that are limited to non-commercial, personal use.

So take Mr. Caldwell's advice and read the license. If you need deeper analysis, track down an attorney who can go over the license with you.

And, when you purchase any creative material (fonts, photos, software), try and keep a copy of the license and a proof of purchase together in a folder in your files. That way you will have evidence to prove your rights if you are sued by someone.

Good luck with the t-shirts!

This information DOES NOT create an attorney/client relationship. I only represent clients after I've entered into an agreement with them. This is general legal information geared towards Georgia law. If your problem is not one involving Georgia law, then you should consult an attorney in your jurisdiction. THIS IS NOT LEGAL ADVICE—it is provided for informational purposes only. You should always contact an attorney if you have more questions.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

I'd like to see authority for the assertion that "fonts are copyrightable as artwork." They are not. See Eltra Corp. v. Ringer, 579 F. 2d 294 (4th Cir. 1978) at http://goo.gl/VQ1Ss

John William Nelson

John William Nelson

Posted

Scalable fonts may be copyrightable as original works of authorship, whereas typeface used as type (bitmap form) is not. I would argue that fonts, therefore, are copyrightable as artwork. It is the software representation of the fonts arranged in a harmonious manner that is the basis for the the originality of the work. The authority for this is 57 Fed. Reg. 6202. You are correct that the underlying reasoning of the Copyright Office in issuing 57 FR 6202 was that scalable fonts are copyrightable because of their computer software elements. You referenced this in your own answer to the question. However, technically you do not quite connect the dots. It is not the software that "creates the fonts" that grants the fonts the ability to be copyrighted. The software used to create the fonts has its own, separate copyright. Rather, the basis for the copyrightability of scalable fonts is based on the software instructions used to render the fonts by another software program. This copyrightability is independent from the programs used to create the scalable font. Your quickly-stated analysis would logically lead to the idea that something I write on Microsoft Word would be copyrightable, in part, because of the software I wrote it on. This would lead to Microsoft having a derivative copyright in my work. This isn't the state of the law. Rather, Microsoft could only gain a copyright in my work through a license where I grant it the copyrights in work I create using their software. There may be additional questions over whether the design software used to make the logo and t-shirt designs was used under a commercial license. However, if you use a non-commercially design software that doesn't grant the software company a right to your copyright. Instead, it means the user of the software breached the licensing agreement and has, therefore, committed copyrighting infringement in regards to the design software itself. But that's not what the questioner is asking about. Which is all a long way to saying that if you want to pick nits over this, then you and I can pick nits sir. You and I are both right on the important parts of the issue. I simply choose to view the basis for copyrightability of scalable fonts differently than some; and you did not take the time to fully connect the dots of what 57 FR 6202 was really saying about scalable fonts as software. Lastly, there is still robust debate over the copyrightability of scalable fonts. Right now, a prudent designer insures they have their licenses in a row concerning their fonts, their stock graphics, and their stock photos. Perhaps the courts will over-rule 57 FR 6202 in the future, who knows? I hope that's enough authority for you. It's not quite a case from 1978, but it is a Copyright Office opinion from much later.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

A "scalable font" is simply [an Adobe-created pretentious label for] font-generating software. As I noted, font-generating software can be copyrightable subject matter. On that we agree [and so most of your comment is irrelevant]. Call that software a pink elephant, or whatever you want, it remains software. But so what? Someone buys a license to use font-generating software. The issue is whether a court would enforce a license term that restricts the use of the output of that software. If the term is enforceable, then its violation is a contract breach -- and, secondarily, an infringement of the software's copyright [solely because of the breach]. I think, however, that a California court would not enforce a software license term that restricts the licensee from commercially using the output it creates via the licensed software. In short, fonts are NOT copyrightable. The software that creates them may be and license terms that restrict the use of the outputs of that software are -- in my opinion -- very, very likely not enforceable. Which means the questioner is on solid legal ground using the software to generate slogans or what-have-you that he then places on tee shirts for sale.

John William Nelson

John William Nelson

Posted

Perhaps next time you should email me if you want to get into a "mine is bigger than yours" competition. It would save some digital ink. Once again, you're wrong about where the copyright for scalable fonts is based. It is not in the software that creates the scalable font. Scalable font is not a pretentious label created by Adobe. Rather, it is a term for vector-based graphics that can scale up or down without a loss in quality. This is because these graphics use mathematical computations of the lines and angles of the image rather than pixels. Bitmaps use pixels (GIFs, JPEGs, PNGs, etc.). You are correct that "font generating software" can be copyrightable. Adobe Illustrator is copyrightable. You are incorrect that scalable fonts gain their copyrights from this software. Scalable fonts gain their copyrights from the fact that the underlying format is copyrightable as software. To continue with the Adobe example, the Illustrator AI file format that uses mathematical rendering described in code to create a harmonious collection of hundreds of letters that can scale in size. Fonts are not copyrighted as typeface, but they may be copyrightable as rendered software. Vector image formats are that software. (You might call them "font representation software.") I cannot speak to California courts; I am not licensed there and I do not practice there. I can say that courts in other jurisdictions have enforced licenses restrict the use of software. I do think the questioner is likely on solid legal ground for using the fonts to generate graphics and logos, but not because I believe the license for a scalable font is unenforceable (as you do). Rather, I believe he's on solid legal ground because most licenses for such fonts allow such use. Then again, it might all be moot–he might have used a non-scalable font that is not afforded copyright protection. Clearly you and I both have better things to do than to continue disagreeing with each other–especially when we agree, in effect, on the likely rights of the questioner.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

Cutting the wheat from the chaff is an acquired skill. Whatever ultimately meaningless circuitous route you want to take to get to the point that the issue turns on the enforceability of the license is fine. You believe "most licenses for such fonts allow such use." I don't really care if they allow such use or not because I believe a license term that prohibits such use is unenforceable. You apparently have no opinion on that.

John William Nelson

John William Nelson

Posted

Mr. Ballard, you keep digging yourself a deeper whole by failing to actually read. You failed to actually read the law regarding fonts, stopping at a 1978 case. You failed to actually read how software works. You failed to actually read how creative artists use fonts. Then you failed to read my last post. On top of that, you incorrectly put words (or lack thereof) into my mouth. You say that I "apparently have no opinion" on whether license terms are enforceable. Perhaps you missed the entire sentence when I said "I can say that courts in other jurisdictions have enforced licenses restrict the use of software." You can keep trying to twist my words if you like. My legal analysis stands on its own. You were the one who failed to keep up to date on the law regarding fonts. You are the one who fails to understand the copyright relationship between creative software, creative work, and image types. You were the one who continued to press this issue. On top of that, you take a stance that the licenses used by a majority of font services are unenforceable. While you have the gall to blithely ask for my authorities on the copyrightability of fonts, you provide no authority on why standard industry practice is entirely unenforceable. Do you have authority for such a stance? Instead of getting into an argument over who's law is more correct, perhaps you could enlighten the questioner with authority for your stance that he or she has no liability. You know, it might actually help the questioner. That is the purpose of AVVO, rather than trying to tear down others. Good luck with your practice Mr. Ballard.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

Copyright can attach to either a thing [e.g., source code for a computer program, a piece of artwork, a series of recorded musical notes, etc] or to the selection and arrangement of things [e.g., an anthology of poems, a photograph, the appearance of a webpage, etc.]. Period. There is NO "copyright relationship between creative software, creative work, and image types." Copyright attaches to a thing or to a selection or arrangement of things. A font is a thing -- to which copyright DOES NOT attach. Font-generating software is also a thing -- to which copyright can attach. It is that simple: copyright to a computer program -- you're effort to complicate the matter with "relationships" is just silly. Of course a software licensor can lawfully restrict what the licensee can do with the software -- otherwise there would be no need for the license. The issue is whether a license term that restricts the licensee from selling a product that is, only in part, made from the OUTPUT of the software is enforceable. Read that again: the software is used just as intended to create its intended output [in this case symbols in a particular font]. The licensor, however, wants to restrict what the licensee can do with that output. That is like saying Microsoft can prevent a Word licensee from filing a Word-generated document with the EPA. Silly.

John William Nelson

John William Nelson

Posted

Mr. Ballard, you do not seem to be actually reading what I write. Let me try one more time, and then I will leave you to your harangue. First, scalable fonts are copyrightable per 57 FR 6202. Second, scalable fonts are not, themselves, "font generation software" as you so assert. The basis for granting copyright protection to a scalable font when it cannot be provided to a font used as a typeface is that a scalable font is software. However, the software representing the scalable font is not "font creation software" but, rather, font display software. Third, "font creation software", such as Adobe Illustrator or any program capable of creating an SVG (Scalable Vector Graphics) file are not the basis for the Copyright Office's opinion in 57 FR 6202 allowing copyright protection for scalable fonts. Rather, 57 FR 6202 protects the scalable font file itself–not the software used to create the scalable font file. As for my use of the term relationship, what I used it for was to highlight what I felt was your confusion or misunderstanding over the basis for 57 FR 6202. You appeared to believe it was based in the font creation software, such as Adobe Illustrator, and not in the scalable font file. This is not the case. The relationship I wrote about was how these two intangible things–font creation software and a scalable font file–are related in that one might derive from the other, but each have separate and distinct copyrights. I am not sure why you are so confused over the use of the term, so I will not try and belabor this point. Finally, I did not say a licensor can restrict the use of the output of a software program (such as a font creation program). Rather, I did indicate that a licensor may restrict how software is used. Failure to abide by these restrictions may result in the licensee being in breach of the license and losing the copyright to use the program. So while Microsoft cannot prevent you from filing a Word-generated document with the EPA, they can sue you for breaching the Word license if you used the Home & Student version of Word in your law office (a commercial setting), which is against the license terms of the Word Home & Student version of Microsoft Office. You can read Microsoft's take on their licensing rights here: http://blogs.msdn.com/b/mssmallbiz/archive/2008/12/01/9160762.aspx There is also caselaw support the enforcement of EULAs through both shrinkwrap and clickwrap agreements. California courts have been more hesitant to enforce shrinkwrap agreements, although clickwrap agreements may be viewed differently. Cases finding clickwrap agreements enforceable (each more recent than 1978): DeJohn v. TV Corp. Int’l., 245 F.Supp.2d 913 (C.D. Ill. 2003). Barnett v. Network Solutions, Inc., 38 S.W.3d 200 (Ct of App. Tx 2001). Hughes v. McMenamon, 204 F.Supp.2d 178 (D. Mass. 2002). I. Lan Sys., Inc. v. Netscout Serv. Level Corp., 183 F. Supp. 2d 328 (D. Mass. 2002). Register.Com, Inc. v. Verio, Inc., 126 F.Supp.2d 238 (S.D.N.Y 2000). Hotmail Corp. v. Van Money Pie, Inc., 1998 U.S. Dist. LEXIS 10729, No. C98-20064, 1998 WL 388389 (N.D. Cal. April 16, 1998). You can learn about various scalable font types here: http://www.pps.jussieu.fr/~jch/software/font-formats.html You can learn more about Adobe's font licensing here: http://www.adobe.com/aboutadobe/antipiracy/ff_faq.html You can read the actual license of a font-selling company here: http://www.linotype.com/2061-28225/licenseagreementforfontsoftwarendashlinotypeeula.html (If you read closely enough, you can see how they continuously refer to fonts as "font software." This is different, mind, than font creation software; they are talking about font displaying software embodied by the font's file type.) I hope this clarifies things a bit for you Mr. Ballard. Good luck with the rest of your answers to questions, and have fun sending more comments my way on this answer.

Maurice N Ross

Maurice N Ross

Posted

Thank you both for this discussion. It is helpful and educational.

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