Calligraphy & Intellectual Property: What all Calligraphers really need to know

Calligraphers are often asked to write out poems and lyrics to put an extra touch on someone’s special day. But before you put your pens to paper, it is important to understand the intellectual property issues that may arise within the world of calligraphy.

What is a copyright? Can I copyright a font that I created?

A copyright is the exclusive right of the creator of an original work to use, sell, distribute, and reproduce the work. Most common are the copyrights of original works such as song lyrics, poems, screenplays, and works that are artistic in nature.

An object is a “useful article” if it has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. The alphabet in itself is intrinsically useful. Unless you can separate the design elements of the font or typeface from the “useful” elements, copyright protection will not be extended.

What is a trademark? Can I trademark a design of the font I created?

A trademark is a word, phrase, logo, symbol, and/or design that identifies and distinguishes the source of the goods {or services} of one party from those of others. Trademark law only protects the name of the font which prevents someone from creating the font with the same exact name and using it in commerce. Trademark law does not protect the design of the font. For example, the name of the fonts Calibri and Times New Roman are both registered trademarks. Additionally, fonts are protected as long as they are incorporated into a logo.

Now that we have distinguished the difference between copyright and trademark law and how copyright law and trademark law can affect calligraphers let’s discuss what calligraphers can use.

What can I use in my designs?

If your design contains quotes, song lyrics, and content that is not your original work you may need to contact the original owners of the work and ask for their permission to use it. You may even be required to pay a fee. However, works that are in the public domain are free to use, without the risk of infringement.

The public domain is the home to all creative works that are no longer subjected to copyright law because the copyright protection for the work has expired, been forfeited, or has been waived.

You are free to use creative works in the Public Domain without restrictions and you will not be required to obtain a license or pay a fee to use them. Works that are automatically entered into the Public Domain because they are not copyrightable are titles, names, numbers, familiar symbols, and short phrases and slogans. I would advise that short phrases such as “show me the money” are not covered by copyright law. But if there is a short phrase that is so obvious from a particular work that a majority of the public will recognize it has or:

Here are some websites that you can use to find public domain works:

  • https://publicdomainreview.org/
  • https://librivox.org/
  • http://www.gutenberg.org/wiki/Main_Page

Is it still copyright infringement if I give the artist credit?

Yes.  Giving the author or artist doesn’t protect you from a claim of infringement.  If you were to design Ed Sheeran’s lyrics “Kiss me under the light of a thousand stars, place your head on my beating heart” and put “By: Ed Sheeran” next to it you would still be violating Ed Sheeran’s copyright on those lyrics.

What is Fair Use and can it protect me against a copyright infringement claim?

The Fair Use Doctrine offers some wiggle room for copyright infringers. The Fair Use Doctrine of copyright law permits the unlicensed use of a copyright-protected work for criticism, commentary, parody, news reporting, research, teaching, and scholarship. There are no legal rules that allow for a specific number of words, a certain number of musical notes, or a percentage of a work to be used in a work. However, courts considered some factors when deciding whether the work is protected under the fair use doctrine.

Four factors are also considered when evaluating fair use:

(1)  Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes

  1.   Courts typically look at how the party claiming fair use is using the copyrighted work.
  2.   Courts are more likely to find that nonprofit educational and noncommercial uses are fair.
  3.   Transformative use can also be considered under fair use. A use is Transformative if it adds something new to the original work.

(2)   The nature of the copyrighted work

  1. The unlicensed use of a work that is creative, imaginative, or fictional such as quotes from a novel, movie, or song lyrics is not as likely to be supported under the fair use doctrine.

(3)  The amount and substantiality of the portion used in relation to the copyrighted work as a whole

  1.   Under this factor, courts will look at both the quantity and quality of the copyrighted material that is being used.  Generally, if a large portion of the copyrighted work is used, a court is less likely to find the use of the work to be fair use. If the use of the copyrighted work is only a small amount of “de minimis”, fair use is more likely to be found. However, it is possible that fair use may not be found if the copyright infringer uses a small portion of a work that is the “heart” of the work.

(4)   The effect of the use upon the potential market for or value of the copyrighted work

  1.   Under this factor the court looks at whether the use of the copyrighted work harms the current market for the original work.

So there you have it.  As you can see the area of intellectual property can be a little tricky so you should always err on the side of caution when using the work of another creator.

 

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