copyright intellectual-property trademark patents
Is a book formatting subject to copyright laws?
<p>I'm an IT professional who happens to be interested in EU law.</p>

<p>Currently and for the next about 2 years I am tasked with writing a rather lengthy document (estimations are about 1000 to 1,200 A4 pages). It is not intended that this work will ever be for sale (but who knows), however, it might end up in the Web, as public domain.</p>

<p>I've set up this document's formatting with borrowing several ideas from a book (which happens to be my favorite book on my law hobby [1]).</p>

<p>Question: I have no problems whatsoever with properly crediting my borrowings, but:</p>

<p><strong>Are the layout characteristics of a book copyrightable? Can anybody hold a right on the idea of making heading numbers blue, putting top-level headings in a shaded box etc.?</strong> (Especially considering EU law.)</p>

<p>[1] Craig, P. and De Burca, G.; EU Law. 2015. Sixth Edition. Oxford University Press.</p>

<p>According to Wikipedia's article on <a href="https://en.wikipedia.org/wiki/Intellectual_property_protection_of_typefaces" rel="nofollow noreferrer">"Intellectual property protection of typefaces"</a> a <strong>typeface</strong>, that is a set of coordinated shapes making up a set of letters and other characters, is not protected by copyright under US law, and was specifically excluded during the hearings which led up to the passage of the 1976 Copyright Act (the basis of modern US copyright, and the first significant revision since 1909). These hearings are described somewhat in <a href="https://typographica.org/on-typography/copyright-protection-of-typefaces/" rel="nofollow noreferrer">"The Last Time the US Considered Copyright Protection for Typefaces"</a>  from <em>Typographica</em>, whose author writes </p>

<blockquote>
  <p>The United States has the dubious distinction of offering no copyright protection for the design of typefaces — at least not in their visual form.1 With the advent of digital fonts, type manufacturers found a way to protect their intellectual property by submitting typefaces for copyright in a format the government did accept: as font software, the computer instructions for placing the points and drawing the curves. </p>
</blockquote>

<p>However, according to that same Wikipedia article linked above, typefaces <strong>are</strong> protected by copyright in Germany (up to 25 years), Ireland (15 years, <a href="http://www.irishstatutebook.ie/eli/2000/act/28/section/85/enacted/en/html#sec85" rel="nofollow noreferrer">Copyright and Related Rights Act, 2000 (Ireland), §§ 84-85</a>. ), Russia (term unclear), and the UK (25 years, <a href="http://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/III/crossheading/typefaces" rel="nofollow noreferrer">Copyright, Designs and Patents Act 1988 (c. 48), § 54</a>) and possibly other countries.</p>

<p>However, a <strong>digital font</strong>, that is computer code to produce the letterforms of a typeface in scalable form, <strong>is</strong> protected in the US an various other countries. (note that this does not apply to bitmapped fonts, which simply encode letterforms, rather then constituting instructions for producing letterforms.) See <a href="https://en.wikipedia.org/wiki/Adobe_Systems,_Inc._v._Southern_Software" rel="nofollow noreferrer"><em>Adobe Systems, Inc. v. Southern Software</em></a>.</p>

<p>The US law is described and summarized  in <a href="https://www.crowdspring.com/blog/font-law-licensing/" rel="nofollow noreferrer">"The Law on Fonts and Typefaces in Design and Marketing"</a> by  Ross Kimbarovsky (Feb 2019).</p>

<p><a href="https://www.lawyers.com/legal-info/intellectual-property/intellectual-property-licensing/company-sues-over-unauthorized-use-of-its-fonts.html" rel="nofollow noreferrer">"Company Sues Over Unauthorized Use of Its Fonts"</a> describes a suit by Font Bureau, Inc. against NBC, alleging that its font programs were used beyond what the license permitted. But this case was settled without an opinion.</p>

<p>US Copyright office Circular 33 <a href="https://www.copyright.gov/circs/circ33.pdf" rel="nofollow noreferrer">"Works not Protected by Copyright"</a> (page 3) says:</p>

<blockquote>
  <p>Copyright law does not protect typeface or mere variations of typographical ornamentation or lettering. A typeface is a set of letters, numbers, or other characters with repeating design elements that is intended to be used in composing text or other combinations of characters, including calligraphy.</p>
</blockquote>

<p>However, according to <a href="http://clearskylaw.com/2016/05/23/trade-dress-law-protects-look-feel-websites-digital-layouts/" rel="nofollow noreferrer">"Trade dress law protects look and feel of websites and digital layouts"</a> from ClearSky:</p>

<blockquote>
  <p>[t]he Federal Ninth Circuit Court of Appeal, in the case <em>Millenium Labs v. Ameritox</em> determined that a visual layout of a digital report could be considered trade dress.  The issue was whether or not the look and feel of digital report was functional.</p>
</blockquote>

<p>

<blockquote>
  <p>The court held that even when it is generally functional to use some system to display the test results, it is still a question of fact whether the particular design in question is functional.  This ruling is significant because it allows a trade dress claim for the infringement for the look and feel of digital graphs, reports, layouts and designs.</p>
</blockquote>

<p>According to the <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/13-56577/13-56577-2016-04-04.html" rel="nofollow noreferrer">Justia Opnion Summary of Millennium Labs. v. Ameritox, Ltd., No. 13-56577 (9th Cir. 2016)</a>:</p>

<blockquote>
  <p>At issue is whether a product’s visual layout is functional, defeating a claim for trade dress infringement. The court concluded that, under the Au-Tomotive Gold two-step test, the district court erred by granting summary judgment to Ameritox on Millennium’s trade dress claim. In regard to the first step, genuine issues of material fact remain regarding whether Millennium's claimed trade dress has any utilitarian advantages. Under the second step, because Millennium has presented evidence that the graphical format served in part a source identifying function, Millennium has presented enough evidence to allow a jury to assess the question of aesthetic functionality. Accordingly, the court reversed and remanded. </p>
</blockquote>

<p>This case seems to offer what amounts to trademark protection for the look and feel of a document, provided that the look is distinctive enough to serve as identification of the source, like a trademark. But this is not a final decision.</p>

<p>I have not been able to find any caselaw on copyright protection for the overall layout and formatting of a book, however distinctive, one way or the other.</p>

<p>It is worth noting that in the US, unlike some other countries, trademark or trade dress protection can exist <strong>without</strong> registration, although registration grants stronger protection. Therefore a search of the registry does not suffice to determine that such protection does not exist.</p>

<h2>The “look and feel” of literary work <em>is</em> protected by copyright</h2>

<p>This includes things like font choice, heading structure and layout.</p>

<p>However, the copyright only extends to the original creative elements in the work. Which is why courts consider the overall “<a href="https://en.wikipedia.org/wiki/Look_and_feel" rel="nofollow noreferrer">look and feel</a>” rather than specific elements.</p>

<p>Most cases in this area have been over software but, in theory at least, it is equally applicable to books. As an example, the “<a href="https://en.m.wikipedia.org/wiki/For_Dummies" rel="nofollow noreferrer">For dummies</a>” publisher would have a very strong case against anyone going too close to that look and feel.</p>
