Introduction

Fonts are integral to the visual language of a brand. They influence the way in which brands communicate with customers, investors and the market. They are also important for brand identity and recognition. Consumers associate brand identities with particular fonts, allowing them to distinguish between competitors and brand impersonators. Consumers may attribute certain characteristics or qualities to a particular business based on their font design and the visual impression it creates.

Fonts may also carry intellectual property rights. Fonts are often subject to restrictive contractual licence terms that many businesses are either unaware of, or do not consider until a problem arises.

A font used in a logo, website, application or campaign may be subject to a licence that limits how, where and by whom it can be deployed. Using a font outside the scope of that licence can expose a business to copyright infringement claims, breach of contract, and costs associated with remediation or rebranding.

This article outlines the main issues businesses should consider when selecting, licensing and deploying typefaces and font software across commercial, digital and brand environments.

Typeface, font and font software

The terms typeface and font are often used interchangeably, but they are not the same.

A typeface is the broader visual design of a set of characters. Common examples include Arial, Helvetica and Times New Roman. By contrast, a font is the specific digital implementation or variation used to render that design, such as Arial Bold, Arial Narrow or Arial 10 point.

For digital uses, the relevant asset is often the font software. Font software may comprise files such as TTF, OTF, WOFF or WOFF2, which contain the instructions that enable a computer, browser or printer to render characters on screen or in print.

In Australia, aspects of a typeface or font may be capable of protection as artistic works if the requirements of the Copyright Act 1968 (Cth) are met. Separately, the underlying font software may be protected as a literary work, including as a computer program, where the relevant code or digital instructions originate from a human author or authors and involve sufficient independent intellectual effort in their creation, selection, arrangement or expression.

In commercial contexts, the practical focus usually concerns whether a business has the contractual right to use font software in a particular way. This depends on the scope of the relevant End User Licence Agreement (EULA), including whether the business is permitted to install, copy, embed, host, modify or distribute the font files.

The scope of rights under a EULA is particularly important in digital use. A business may use a typeface as part of a static logo or finished artwork without transferring the underlying font software. By contrast, a website or application may require the font file itself to be hosted, embedded or made available to end users’ devices. Those acts may engage rights in the font software and will usually need to be authorised under the applicable licence.

There is no standard font licence

Font licensing is not standardised. Each font foundry, vendor, software provider or platform may use its own EULA, pricing model, licence categories, usage restrictions and deployment rules.

A business should not assume that a font obtained from one source carries the same rights as a font obtained from another. The licence should be reviewed by reference to the intended use, the identity of the licence holder, the relevant deployment model and the commercial scale of use.

Common licence categories include:

• desktop or print licences, for use in design software and printed materials;
• web licences, for embedding, hosting or serving fonts on websites;
• app licences, for use in software or mobile applications;
• advertising licences, for digital, social, outdoor or other campaign use;
• broadcast licences, for television, video, streaming or other audiovisual use;
• logo or brand licences, for use in trademarks, corporate identity systems and brand assets; and
• enterprise licences, for broader organisational deployment.

The scope of permitted use depends on the terms of the agreement, not merely the label applied to the licence.

Digital use

Digital use requires particular care because using a font online may involve more than simply displaying text. The font file itself may be embedded, hosted, served or otherwise made available through a website, app, platform or other digital asset.

For example, if a website uses a web font, the font file may be sent to the user’s browser. It may come from the website operator’s own server or from a third-party hosting service. This can involve copying, communicating or otherwise making available the font software, and those uses generally need to be covered by the font licence.

This is different from a website referring to a system font that is already installed on the user’s device or operating system. In that case, the website may tell the browser to use the font, but the website operator is not ordinarily providing the font file to the user.

For instance, a desktop licence may allow a designer to use a font in Microsoft Word or other design software. It will not necessarily allow the business to use that font as a web font, embed it in an app, host it on a server, or make it available through an app, platform, document or other digital asset.

Licence scope is often limited by scale

Font licences are commonly priced and restricted by reference to the scale, channel and manner of use. A licence may limit:

• the number of users, applications or digital services;
• the number of employees within the organisation;
• website traffic, monthly visitors or page views;
• the number of websites, domains or digital properties;
• impressions, campaign reach or advertising spend;
• the number of typefaces, weights or styles included;
• the volume of printed materials;
• the territory or duration of use; and
• the ability to embed, modify, host, share or redistribute font files.

Some licences also distinguish between static and dynamic use. Static use may involve finished artwork or text displayed in a form that users cannot edit. Dynamic use may involve user-generated or user-editable text, such as search fields, form fields, design tools, personalisation functions or template generators. Dynamic use may require broader rights or a separate licence.

These limitations can be material in a rebrand, transaction, campaign launch, website rebuild, app release or product rollout. A licence suitable for a design concept or small internal project may be inadequate for national advertising, enterprise deployment or group-wide brand use.

Trial and commercial licences serve different purposes

Many font licensing issues arise from a misunderstanding of licence type.

A personal licence usually permits private, non-commercial use. Personal licenses are usually less expensive because they cannot be exploited through commercial use.

A trial licence usually permits internal testing or mock-ups. It may allow a designer or business to assess whether the font suits a concept. It will rarely authorise publication, commercial release or broader distribution.

A commercial licence is required where the font is used for business purposes. Even then, the business must confirm that the licence covers the relevant medium, scale, territory, users, duration, licence holder and deployment model.

The internal approval of a design concept within a business does not approve the font licence. Once a concept moves into production, the licence position should be checked again.

Open-source and ‘free’ fonts are not risk-free

A ‘free’ font may still be subject to licence terms. It may be free only for personal use, attribution-based use, limited distribution or non-commercial projects.

Open-source fonts can be useful, particularly for websites and digital assets such as online ads and social media. However, open-source fonts are still licensed on open terms. It does not mean use without conditions. Open-source font licences may govern modification, redistribution, attribution, reserved font names, bundling with software and sale of the font file itself.

For example, many open-source fonts are distributed under the SIL Open Font License. That licence generally permits broad use, modification and redistribution, but still imposes conditions on how the font software may be sold, renamed or relicensed.

Unofficial font websites may also create legal and cybersecurity risks. A business may have difficulty proving where the font was obtained, what licence terms applied at the time of download, and whether the person who uploaded the font had authority to do so.

For commercial use, businesses should source fonts from reputable font foundries, vendors, established marketplaces or properly documented open-source repositories. They should retain the EULA, invoice, download record, version details and any written permissions from the font foundry or vendor.

Creative agencies and freelancers

A common mistake is to assume that, because a creative agency or freelance designer used a font when designing a brand identity, the business is licensed to use that font commercially.

An agency may have its own font licence that permits it to use the font in concepts, mock-ups, logos, style guides or other brand deliverables. However, that licence may only authorise the agency’s use of the font and may not extend to the client’s ongoing commercial use of the font in its business.

If the business receives the commercial benefit of the font, it may need its own licence, or a licence sized by reference to the organisation and intended uses. This is particularly important where the font will be used across websites, advertising, packaging, signage, templates, social media, documents or other brand assets, or by a national business across its broader brand environment.

Why this matters

Font licensing issues are usually avoidable, but they can become expensive when discovered late. For example, after a brand launch, during a website rollout, in due diligence, after a demand from a font foundry or vendor, or when a business seeks to transfer, scale or commercialise its brand assets.

The risk is broader than copyright infringement. It may include breach of contract, defects in creative deliverables, incorrect assumptions about asset ownership, campaign delay, disruption to digital services, and unexpected licence or settlement costs.

Foundries and font vendors are also increasingly able to identify potential unlicensed use through automated website scanning and other detection tools. Where a website or app appears to incorporate font software and no licence can be verified, the business may receive a demand to purchase or upgrade a licence, pay back fees, or resolve an alleged unauthorised use.

Although there is limited Australian case law dealing directly with web font infringement, overseas disputes illustrate the types of issues that can arise:

• In proceedings concerning Cher’s album Closer to the Truth, a graphic designer alleged that the album artwork copied elements of his typography. The proceedings were dismissed without prejudice after the defendants disputed, among other things, whether typefaces were protected by copyright.
• Production Type reportedly alleged that Nike had acquired only limited desktop and digital-audio rights in the Kreuz font family, but used the font more broadly in marketing materials, including video and social media content.
• In litigation concerning the Hadassah Hebrew typeface, an Israeli court reportedly found that rights in the typeface belonged to the designer’s heir, rather than the foundry that had been exploiting it.

While the treatment of copyright in typefaces and font software differs between jurisdictions, these disputes are instructive. They show that font use by businesses, artists, designers and agencies can attract scrutiny from foundries and rights holders, particularly where licence scope, ownership records or brand deployment are unclear.

Practical steps for businesses

If a business uses fonts across multiple platforms and applications, it should:

• obtain the appropriate commercial licence before publication or launch;
• confirm that each licence covers the relevant platform, scale, geography, users, duration and deployment;
• confirm, where an agency, freelancer or contractor supplies creative work, that the licence extends to the business’s intended use;
• maintain an inventory of fonts used across the business’s brand assets, recording the typeface, file format, source, licence holder, licence date and scope;
• review font licences before a rebrand, acquisition, campaign launch, website rebuild, app release, product expansion or brand asset handover; and
• retain copies of EULAs, invoices, download records and written permissions from the relevant foundry or vendor.

What to do next

Before using a font commercially, read the font licence. If the proposed use is unclear, ask the foundry or font vendor. If the font is material to the brand, document the rights properly.

For websites, apps and digital platforms, pay particular attention to whether the font is being embedded, hosted or otherwise made available to users. That use may require rights beyond a desktop licence.

For logo and brand identity work, distinguish between receiving finished artwork and using the font software across the business. A finished logo file may raise different issues from ongoing use of the same font in websites, packaging or advertising.

A font may appear to be a small design choice. However, in commercial use, it can become an intellectual property, contractual and procurement issue. Businesses should therefore type carefully by addressing font selection, licensing and deployment before a font becomes part of the brand.

HWLE Lawyers’ intellectual property team has extensive experience advising businesses on the selection, licensing and commercial use of fonts, including in branding, advertising, websites, applications and other digital assets. If you are concerned about font licensing, brand asset management or intellectual property risk in the use of typefaces and font software, please contact us for further information on how we can assist you.

This article was written by Luke Dale, Partner, Christopher Power, Solicitor and Jasper Dowdell, Law Graduate.