Understanding IP Infringement Risk in Typeface Use in AI-Generated Content

In the world of design, typefaces and fonts are essential tools that help convey a brand's identity, evoke emotions and communicate messages effectively. However, the use of typefaces and fonts without proper licensing can expose individuals and businesses to potential intellectual property (IP) infringement claims. With the rise of artificial intelligence (AI) in design, the risks of illicit typeface use have become even more pronounced. This blog post will explore the distinction between typefaces and fonts, the applicability of IP protection, and how AI might influence the landscape of typeface usage.

Typeface vs. Font: Understanding the Difference

The terms "typeface" and "font" are often used interchangeably but have distinct meanings:

• Typeface: A typeface refers to the design of a set of characters, including letters, numbers, and symbols. It is the artistic representation or style of the text, such as Times New Roman, Helvetica, or Arial.
• Font: A font is the digital or physical implementation of a typeface. For example, Times New Roman in 12-point size and bold is a specific font within the Times New Roman typeface family.

In simple terms, the typeface is the design, while the font is the tool used to apply that design.

Are Typefaces Protected by Copyright or Other IP?

In Canada, copyright protection may extend to typefaces and fonts, along with the software code underlying those typefaces and fonts.

• Typefaces and Fonts: The Copyright Act (the Act) extends copyright protection to original literary, dramatic, musical and artistic works, which must: (i) be the product of its author's skill and judgment; (ii) be more than the product of a mere mechanical exercise; and (iii) is limited to the distinctive fixed form of expression and not underlying ideas. Copyright protection of a typeface and/or font is therefore limited to original aspects that are the product of the typographer's skill and judgment and does not extend to the unoriginal underlying alphanumeric characters. If copyrightable, a finding of infringement may result in compensable harm, including "statutory" damages within a range of preset amounts.
• Software Code: fonts that are the byproduct of computer software code, e.g., .ttf and .otf file extensions, may also fall under the protection of the Act, which defines "literary works" as including "computer programs". Accordingly, copyright protection may extend to both the font itself and the code underlying it.

Typefaces and fonts may also qualify for protection under trademarks and/or industrial design legislation.

• Trademarks: The Trademarks Act affords protection to marks that distinguish the source of a good or service offered by a person or entity as opposed to those offered by others. Trademarks may be registered and/or exist under the common law. A mark may take the form of a sign or a collection of signs, including characters, letters, words or pictures. The Supreme Court of Canada has held that registered word marks (i.e., marks in their textual form) are permitted to be used by the trademark owner in any form, including any typeface.¹ For marks other than word marks, the Federal Court has assessed distinctiveness by analyzing the typeface or font used to assess whether infringement has occurred.² However, it remains an open question whether a typeface or font on its own could be afforded trademark protection, though it is conceivable that a typeface or font could be sufficiently distinctive to qualify for trademark protection. Furthermore, the name of a typeface or font itself may be trademarked, e.g., Times New Roman.
• Industrial Designs: The Industrial Design Act may offer additional protection to a typeface or font. A "design" is the features of a shape, configuration, pattern or ornament in an article that appeal to and are judged by the eye but does not include features in an article dictated solely by a utilitarian function or methods of manufacture. It is likely that if a typeface is applied to an article, it may attract protection under the Industrial Design Act.

The Role of AI in Typeface Usage

AI is revolutionizing the creative industry, including the creation and use of typefaces and fonts. However, it also introduces new challenges and risks related to IP infringement:

• AI-Generated Typefaces: AI tools can now generate new typefaces by analyzing existing designs, which may raise questions about: (i) whether the AI-generated typeface itself is sufficiently original to attract copyright protection; and (ii) whether AI-generated typefaces infringe on existing designs.
• Unauthorized Use: AI-powered tools can easily replicate and distribute typefaces without proper licensing. For example, an AI tool could extract a typeface from an image or document and make it available for use, potentially violating licensing agreements or copyright laws.

How to Mitigate Risks

Many typefaces and fonts are distributed under licensing agreements, which dictate how the font can be used, whether for personal, commercial, or web use. Using a font without adhering to its licensing terms can lead to legal consequences, including financial penalties.

To avoid potential IP infringement exposure when using typefaces, consider the following best practices:

• Understand Licensing Terms: Always review and adhere to the licensing terms of any font you use. Ensure that the license covers your intended use, whether for personal, commercial, or web purposes.
• Purchase Licenses: Invest in licensed fonts from reputable sources. This not only ensures compliance but also supports typeface designers and their work.
• Avoid Free Font Pitfalls: Be cautious when downloading free fonts. Although many websites purport to offer free font downloads that allow for copying and distribution, businesses must be alert to whether these websites accurately convey the permissions associated with each font. Some purportedly free fonts may have restrictions on commercial use or may not be properly licensed.
• Use AI Responsibly: If using AI tools to generate creative content or to generate or modify typefaces, ensure that the output does not infringe on existing designs.
• Consult Legal Professionals: If unsure about the licensing or copyright status of a typeface, seek advice from a legal professional specializing in intellectual property law.

Takeaways

The use of typefaces and font without proper licensing can expose individuals and businesses to legal risks, especially as creatives increasingly use AI to generate content. By understanding the distinction between typefaces and fonts, staying informed about copyright and other IP laws, and adhering to licensing agreements, you can mitigate the risk of potential infringement claims.

If you have any questions about how your organization may use and implement AI and potential risks regarding unauthorized typeface use, we invite you to contact one of the authors of this article.

Please note that this publication presents an overview of notable legal trends and related updates. It is intended for informational purposes and not as a replacement for detailed legal advice. If you need guidance tailored to your specific circumstances, please contact one of the authors to explore how we can help you navigate your legal needs.