Unfortunately for NBC Universal (“NBC”), along with the release of the final Harry Potter movie came the filing of a $1.5milion lawsuit against NBC. The Plaintiff, P22 Type Foundry (“P22”) is a company that designs typefaces. P22 are claiming that the font used on some Harry Potter merchandise (including a “Dementor Cap”, a “Hogwarts Stationery Set” and a “Hedwig Pillow”) was created by them. The font in question is “Cezanne Regular”. P22 are arguing that NBC infringed upon its copyright by using Cezanne Regular for commercial purposes without their permission on said merchandise in connection with a new ride at Orlando’s Universal Studios (The Wizarding World of Harry Potter).
Fonts are not necessarily copyrightable. However, computer software that renders a font is copyrightable. Section 5(1) Copyright Act 1985: “Copyright shall subsist in Canada….in every original literary, dramatic, musical, and artistic work…..” Section 2: This includes “every original production in the literary, scientific or artistic domain whatever may be the mode or form of its expression….” Section 2: “literary work includes…computer programs” (Needless to say, it is debatable whether true ‘literary merit’ is a requirement!) A computer program means a set of instructions or statements, expressed, fixed, embodied or stored in any manner that is to be used directly or indirectly in a computer in order to bring about a specific result. Therefore, computer programs whether in source or object code are protected as literary works in Canada. Thus, computerized font, because it is software, is protected by copyright. Similarly in the US, fonts or typefaces, are not unto themselves copyrightable. However, computer software that renders a font is copyrightable. The validity of the Harry Potter font lawsuit will hinge on whether NBC used the Cezanne Regular font software when designing merchandise.
While concern over the improper use of a font may seem trifling, one must remember that fonts are the products of creative artists who have a right to be compensated for their work. A musician was once sued for copying ‘silence’ in a musical work on one of his albums. The case was settled out of court for an undisclosed six-figure sum. If you can be sued for copying silence…..need I say more?
Vanessa DeDominicis practices in the areas of business law, real estate and wills and estates. As a Registered Trade-mark Agent with the Canadian Intellectual Property Office and the United States Patent and Trade-mark Office, her business law practice has a specific focus on intellectual property law, including filing Canadian and US trade-mark applications and advising clients on infringement issues. You can contact Vanessa on 250-869-1140 or [email protected]
