The copyright adventure of two typefaces: Is the Spectral font infringing?

http://ipkitten.blogspot.com/2023/05/the-copyright-adventure-of-two.html
Copyright infringement cases often involve works of art, literature, or design. This recent French decision gives us an opportunity to look at a rarer case, that of copyright infringement in a typeface.

A very Kat font

Background

The facts deserve some attention.

 
In 1994, Mr X, a pioneer in digital typography, created a family of typefaces called “Le Monde Journal” for French newspaper Le Monde. Mr X founded ZeAssociates to edit, publish and distribute models of typographic works and software.

Le Monde Journal font

In 2008, Mr X collaborated with Mr Y. In 2014, Mr Y founded Productions Systems, a company dedicated to the creation of digital fonts. In 2016, Production Systems was commissioned by Google LLC to create the “Spectral” typeface for distribution on the Google Fonts website.

 

Spectral font

Believing that the distribution of the “Spectral” typeface constituted an infringement of the copyright in the “Le Monde Journal” font, Mr X and ZeAssociates sued Google France, Google LLC, ProductionsSystems and SELARLU Martin before the Tribunal Judiciaire (TJ) of Paris.

Analysis

In order to reach its decision, the Tribunal Judiciaire divided its reasoning into two parts. First, it focused on the originality of the “Le Monde Journal” font. Then, it examined the subsistence of infringing acts.

It should be also noted at the outset that the court did not really address the question of the admissibility of the case.
The court confirmed the originality of the “Le Monde Journal” typography. Explicitly basing itself on a combined reading of articles L.111-1, L.112-1 and L.112-2 of the French Intellectual Property Code (CPI), the court reiterated that typographic works are protectable under copyright. This is not surprising, as this type of work is explicitly mentioned in the open-ended list of works eligible for such protection. The Court went on to set out a series of principles according to which (my own translation)
 

all original typographic characters enjoy copyright protection by the mere fact of their creation, provided that they bear the stamp of their author’s personality [empreinte de la personnalité] and constitute an intellectual creation manifested by free and arbitrary choices, without their form having been dictated by purely technical requirements.
 
The court also pointed out that who consider themselves a victim of copyright infringement must specify the outline of the free and creative choices that make the work their own intellectual creation.
Accordingly, in upholding the copyright protection of “Le Monde Journal” typeface, the court emphasised that it had (my own translation)
 

a distinctive appearance achieved by various choices, such as the reduction of the verticals in favour of the horizontals, the respective sizes of the eye level, capitals and ascenders on the other hand, as well as the trapezoidal serif details and the distinctive design of the drops. This combination, which achieves the goal of greater legibility and space but could have been achieved by other means, is original, reveals arbitrary choices and reflects the personality of its author.
This part this part of the ruling deserves some attention. Once again, French courts are refusing to use the language derived from CJEU case law on the concept of originality (i.e. Funke Medien, C-469/17 (at [23]).
 
It is reassuring that the court confirmed the irrelevance of the notoriety or not of the author of “Le Monde Journal ” typeface and its commercial success, as argued by the defendants. Merit is irrelevant in copyright matters, contrary to what the plaintiffs seemed to support.
 
In upholding the originality of “Le Monde Journal”, the court emphasised that the combination of features that made it possible to achieve the goal of increasing readability and space could have been achieved by other means. This passage appears to be a non-explicit reference to CJEU case law (Football Dataco, C-604/10, at [39]) on the absence of originality resulting from technical constraints or considerations that leave no room for creative freedom [IPKat on Cofemel here].
Once the originality of the “Le Monde Journal” typeface had been confirmed, the court ruled on the subsistence of acts of infringement. To do this, it had to figure out whether the “Spectral” typeface incorporated the characteristics that underpin the originality of the “Le Monde Journal” typeface. This is usually done by comparing the protected work with the work at issue.
In this respect, relying on article L.122-4 of the CPI concerning the right of reproduction, the court recalled that the assessment of infringement is to be made with regard to the points of similarity between the protectable characteristics of the protected work and the disputed work, contrary to what the defendants maintained. The combination of the original characteristics of “Le Monde Journal” typography was not found in “Spectral”, and therefore the existence of acts of infringement had to be ruled out. The absence of any prima facie infringement of the reproduction right appeared to be reflected in the plaintiffs’ weak arguments, as they failed to prove that “Spectral” incorporated the features that make “Le Monde Journal” original, in particular the size of the eye level.
From a practical point of view, this judgment is a reminder of the care that the plaintiff in an infringement action must take with its arguments. It should be remembered that the characteristics that underpin the originality of the work in question must also be found to have been incorporated in the allegedly infringing work at issue.

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