A Brief History of Creative Assets’ Legal Woes

Working with a variety of assets is obviously a major part of the gig for creatives – but it’s one that is so obvious that it can easily be taken for granted, and lead many to assume that all digital assets being used in a document are allowed to be used, regardless of their licensing or copyright status.


If not corrected in time, this overlooking of assets’ legal status can lead to issues like unlicensed fonts and copyright infringement, and in rare instances, legal cases. Lawsuits involving creative assets are nothing new, and companies can quickly find themselves in news headlines – and in court – if they’re not careful about taking proactive steps to licensing and protecting their creative assets.


While news fades over time, legal cases often come with significant financial and reputational consequences for all parties involved. It’s vital to have a solid understanding of the history of the legal system’s take on creative assets, as knowing the pitfalls of others can help you gain a better understanding of how to prevent your own business from falling prey to similar fates.


Fonts Started It All


The first design patent in the United States wasn’t for a machine or madcap invention concocted in someone’s garage – it was for a font and was issued to the George Bruce of Bruce Type Foundry in 1842, thereby placing typography at the center of the licensing world. However, one of the earliest and most notable cases involving creative asset licensing didn’t involve fonts at all; in 1908, Thomas Edison was busy in court fighting with two other companies over film patents, until the three decided to drop their fists and unite under one company (the Motion Picture Patents Company), where they sought to control all film production by charging licensing fees for the use of cameras, projectors, and other equipment and resources that they patented. The Supreme Court eventually ruled against the company’s attempted industry takeover in 1917, finding they had formed an illegal monopoly that was using its patent to promote its movies illegitimately.


Another significant legal moment for licensing, and one that brought fonts back into the spotlight, came when Congress passed the 1976 Copyright Act, which specifically excluded fonts from copyright protection. The Copyright Office refused to register not only typefaces but also “digital representations of typeface designs” until 1992, when the rise of scalable fonts came about. The Copyright Office was persuaded that “the creation of scalable font output programs” represented a “significant change in the industry” and required enough creative expression in “original computer instruction” to obtain copyright protection. (57 Fed. Reg. 6201-02)


In 1998, Southern Software Inc., a competitor of Adobe, was sued by Adobe and accused of stealing and copying Adobe’s font software. Southern Software argued that “the numerical reference points that define an outline of a glyph are unprotectable as a matter of law,” but the court disagreed, and cited the 1992 decision by the Copyright Office in deciding that “font editors make creative choices as to what points to select based on the image in front of them on the computer screen."


Since then, the Copyright Office’s stance has morphed into allowing the software that generates a particular typeface to be copyrighted, but not the literal typeface itself, creating a whole mess of confusion and kerfuffle – and that’s not even getting into the letters the Office sent out in 2018 stating that font copyright applicants are required to explicitly claim that they input code as text to create font glyph shapes.


Needless to say, it’s all very confusing. And despite the Adobe lawsuit and ruling holding particular significance in the history of licensing legal cases, as it remains the only decision upholding the copyright of font software, that hasn’t stopped font lawsuits from popping up over time. You can take a deeper dive into some high-profile cases of font lawsuits specifically The Font Files.


No Industry Can Hide From Asset Litigation

We’ve talked a lot about fonts, but in the more than two decades since the Adobe ruling, the rise of digital media and the internet has turned nearly everything into a digital asset, fonts included. This has been both a boon for creative work and an unfortunate muddying of the licensing waters, making legal cases involving creative assets far more common across more industries than ever before. Some recent examples include:

  • The “Hope” Poster: Artist Shepard Fairey was sued by the Associated Press in 2011 for copyright infringement over his iconic “Hope” poster of Barack Obama, since Fairey had used an AP photograph of Obama as the basis for the poster. Fairey claimed that his use of the image was protected under fair use laws, and ultimately settled with the AP for an undisclosed sum.


  • The “Blurred Lines” Song: A jury in 2015 decided that Robin Thick and Pharrell Williams had infringed on the copyright of Marvin Gaye’s “Got to Give It Up” in their song “Blurred Lines." Thicke and Williams were ordered to pay $7.4 million in damages to Gaye’s estate.


  • The “Dancing Baby” Video: A judge ruled in 2015 that a video of a baby dancing to Prince’s “Let’s Go Crazy” was protected under fair use laws. The video had been removed from YouTube after a takedown request from Universal Music, but the judge ruled that the video’s use of the song was transformative and didn’t infringe on Universal’s copyright.


  • The “Happy Birthday” Song: A judge ruled in 2016 that the copyright for the “Happy Birthday” song was invalid, meaning the song could be used freely without paying licensing fees to Warner/Chappell Music, which previously held the copyright.


  • Apple vs. Samsung: In 2018, the two companies finally put to rest a seven-year patent battle looking into whether or not Samsung copied the iPhone, specifically regarding design and utility patents for basic smartphone functions like tap-to-zoom and a grid of apps on a home screen. Ultimately, the jury decided that Samsung in many ways did copy Apple and its iPhone, finally settling on a $539 million reward for Apple (whittled down from an original reward of $1 billion).


  • The PETA Monkey Selfie: In one of the more unique copyright cases of the 2010s, a judge ruled in 2018 that a monkey could not hold a copyright for a selfie it had taken with a photographer’s camera. The case was brought by PETA on behalf of the monkey, but the judge ruled that only humans could hold copyright, and that the photographer who owned the camera was the rightful owner of the image.


  • The X Drama: While not a full-blown lawsuit (yet), Elon Musk’s recent decision to replace Twitter’s famous bird logo with a simple letter “X” has once again placed fonts at the forefront of the legal world. Turns out that the new Twitter “X” logo has a lot of similarities to an old Unicode character (U+1D54F) that's been used in math textbooks since the 1970s - so even though Musk is saying that the current "X" is merely an "interim logo," the road is paved for an extensive trademark battle over whatever the final "X" logo ends up being. 


It's clear then – whether you’re working with fonts, images, videos, music, or any other type of creative asset, the aforementioned examples of what can go wrong on the legal side of asset management show how crucial it is to do your due diligence with all assets that you use and include in your deliverables.


Start your journey to better workflow and digital asset licensing with our infographic Layered Licensing In Creative Projects, which is a free and easy way to quickly get your team up to speed on the importance of font management.