Brent Randall is a JD candidate at the University of Ottawa.
Harry Potter and the Deathly Hallows Part 2, the final film in the Potter film series, was released on July 15, 2011. With its worldwide box office grosses now pushing the $1 billion mark, the big story has been the end of the wildly profitable movies after 10 years. A much quieter development has been a lawsuit brought against NBC Universal for its use of a font in the production of Harry Potter merchandise.
The plaintiff company, P22, is claiming that NBC Universal, owners of the “Wizarding World of Harry Potter” theme park in Orlando, did not ask permission to use their Cezanne font on t-shirts, bags and other merchandise. The story is reported here by TMZ, which identifies some of the merchandise (see photo) and comments on the “very wizardy-looking typeface” and the demand for “at least $1.5 MILLION in damages.”
Much of the discussion of the issue in the United States focuses on whether P22 even has a legitimate claim under the country’s copyright law. Chapter 37 of the Code of Federal Regulations clearly states that “typeface as typeface” is not subject to copyright protection. Interestingly, the UK’s Copyright, Designs and Patents Act 1988 does recognize artistic work in typefaces, while Canada’s definition of “design” in the Industrial Design Act covers “features of shape, configuration, pattern or ornament…that, in a finished article, appeal to and are judged solely by the eye”. Since P22’s lawsuit was brought in the New York District Court, its argument is based not on copyright in the font but on copyright in the software that produces the font – such as was seen in the California case of Adobe v. SSI.
Adobe could be important in this case as it shows that if NBC Universal used P22’s font software to produce commercial goods like the merchandise from the Potter theme park, it may be in breach of the end-user-licensing agreement (EULA), which is essentially copyright infringement. As Thomas Finney at Adobe’s blog argues, claiming EULA breach affords a typeface designer little protection despite the creator possibly working for months to perfect the design.
The glaring problem for P22’s case is in trying to prove that NBC Universal in fact used their software, and was therefore subject to their EULA, when it put the font on its merchandise. If NBC Universal copied the Cezanne font, or used some other software that produced an identical font, then it would seem that they would not be directly subject to P22’s EULA, depending on the terms of the agreement.
Since American copyright law so clearly excludes protection of typeface otherwise, P22 appears to only have the EULA argument, which is as much about contracts as it is about intellectual property. If NBC Universal can show that it was not a party to a contract with P22, there may be no viable claim, which may be cause for concern when one considers the ease with which a font can be copied.