Fonts are the unsung heroes of branding, design, and communication. They shape how we perceive text, whether it's on a billboard, a website, or a business card. Yet, despite their importance, fonts are often overlooked — until you receive (a very unexpected) letter of demand. Having assisted multiple clients in handling these claims, ENS' IP team understands the complexities and legal pitfalls businesses may face. To help you navigate the complexities of font usage and licensing, let's break down what fonts are, how they're protected under copyright law, how they are infringed, and how major providers like Microsoft and Adobe manage font licensing. We'll also explore practical steps to mitigate risk exposure for your business and how we can help you avoid the pitfalls!
What are fonts and how are they used?
Fonts are the digital files that bring typefaces to life. A typeface is the design of the letterforms (think Helvetica or Times New Roman), while a font is the software that allows you to use that design on your computer or device. Fonts come in various formats, such as TrueType ("TTF"), OpenType ("OTF"), and web fonts ("WOFF"), each suited for specific uses like print, digital design, or web development.
Fonts are everywhere — in your company's logo, marketing materials, website, and even your internal documents. However, just because a font is installed on your computer, doesn't mean it's free to use in every context. Licensing terms dictate where, how, and for what purposes a font can be used.
Are fonts protected by copyright?
In South Africa, the Copyright Act No. 98 of 1978 ("the Act") recognises various forms of works which are eligible for protection under the Act, if they meet certain requirements. A computer programme is one of those works, which is defined as "a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result". The digital source code that makes a font work, essentially called a font file, is classified as a "computer program" under the Act. This means any unauthorised reproduction or adaptation thereof may constitute copyright infringement. Some jurisdictions, such as the United States of America ("USA"), which permit the registration of copyright, have allowed the registration of font software as a form of copyright.
Insofar as the typeface itself is concerned, jurisdictions such as the USA generally do not protect typefaces under copyright law. While the Act does not specifically make mention of typefaces and we have no judgements specifically dealing with these in South Africa, it's questionable whether or not the design of a typeface alone would pass the originality test in our law.
Typeface names (e.g. Futura) can also be protected as trade marks, and often are! Therefore, also be weary of how you use these names.
In practical terms, while you may be able to manually recreate the look of a typeface (e.g., by drawing it), if it is not protected by copyright laws, you cannot legally copy or distribute the font file without the appropriate licence.
How Microsoft and Adobe license fonts
Two of the biggest players in the font world are Microsoft and Adobe, which both have very clear and detailed licensing terms. These are worth understanding for any business using fonts and relying on Microsoft and Adobe licences for the use of fonts. In particular, the scope of the licence your business has with respect to the use of fonts, may not extend to your actual use thereof. For example, a Microsoft licence may not permit you to embed the fonts into mobile applications.
Adobe Fonts offers a vast library of fonts through its Creative Cloud subscription. Again, the subscription is not without its limitations in relation to the redistribution or modification of the font files.
A common misconception is that, if a font comes with your software package, you may commercialise it as you wish. In reality, many fonts have specific restrictions, especially for web use, social media, or commercial applications. For example, a font that's free to use in a Word document might require a separate licence for embedding in an app or using it on a company website.
Steps to mitigate font licensing risks
Font licensing violations can lead to hefty fines, legal disputes, and damage to your brand's reputation. Here's how you can stay on the right side of the law:
- Review Licence Terms: Always read the End User Licence Agreement ("EULA") before using a font.
- Use Commercially Licensed Fonts: If your project involves widespread use of a font (e.g., in branding or marketing), consider purchasing a commercial licence or using open-source fonts.
- Check with Vendors: When outsourcing design work, ensure your designers are using legally licensed fonts and can provide proof of licensing.
- Educate Your Team: Implement clear guidelines within your organisation about where and how fonts can be used.
Navigating font licensing can be tricky, but you don't have to do it alone. ENS' IP team can assist you with managing your compliance before you get that unpleasant letter, demanding a hefty past-use licence fee! They are able to strategically advise in terms of proactive measures to avoid pitfalls and also assist in negotiating and managing disputes regarding alleged unauthorised font usage.
- Compliance Checks: We'll proactively review your font usage to advise if it aligns with licensing terms.
- Licensing Audits: We can help identify any potential risks and recommend business savvy solutions.
- Best Practices: We'll provide tailored advice, aligned to your commercial needs to keep you compliant and avoid costly mistakes.
- Settlement Negotiations: We'll help you negotiate reasonable settlement terms and reductions in licensing fees.
Conclusion
Fonts are more than just pretty letters — they're intellectual property protected by law. By understanding and respecting font licensing, you not only protect your business from legal and financial risks but also support the designers and creators who make these tools possible. If you're ever unsure about your font usage, don't hesitate to reach out. We're here to help you stay compliant and confident in your creative endeavours.
After all, in the world of design, it's better to be safe than sans-serif!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
