Just in time for the release of the final installment in the Harry Potter film franchise, a related branch of the Harry Potter empire finds itself involved in a curious copyright dispute. This is not another case of an obscure author claiming that J.K. Rowling stole her billion-dollar story from an earlier work. Instead, an independent font company has asserted, in a lawsuit filed on July 5 in the Eastern District of New York, that merchandise sold at Universal Studios’ “The Wizarding World of Harry Potter” theme park in Orlando makes unauthorized use of one of its typefaces.
P22 Type Foundry creates and distributes computer fonts inspired by art, design, and history, often working with museums and foundations to create authorized versions of historical lettering styles or typefaces based on the handwriting of famous figures. One of P22’s most popular fonts is “Cezanne,” a lyrical, swooping lettering based on the handwriting of artist Paul Cezanne.
P22’s Complaint alleges that its “Cezanne” typeface appears on souvenirs sold at “The Wizarding World of Harry Potter” and through the theme park’s web site, including, for example, the “Hedwig pillow” and the “Ministry of Magic Messenger Bag.” P22 has sued Universal and the manufacturers of the licensed products.
Technically, P22’s suit does not allege infringement of a copyright in the typeface design itself, but rather in the computer software program that creates it. The Copyright Office has determined that “typeface as typeface” is not subject to copyright, and it will not accept applications for registration of copyright in a typeface as such. 37 C.F.R. 202.1 (e). Type designers wishing to protect their fonts register and assert copyright (as P22 has) in the software. (In some instances a design patent may also be an option.) While the defendants are not copying and distributing the software itself as in a traditional infringement case, running the software creates copies in computer memory, not to mention the copies presumably created when they first obtained it.
P22 has also attempted to boost the protection for its font by selling the software with an End User License Agreement that restricts how the program may be used. P22 alleges that one of the manufacturers obtained a license only after it had used the software without authorization, and the other defendants did not obtain licenses at all. Moreover, the basic license states that “A royalty based Commercial license is required when P22 software is used to create a product sold for profit,” so the Complaint also includes a count for breach of contract “to the extent Defendants . . . may have purchased a license.”
P22 seeks actual or statutory damages of at least $1.5 million as well as the destruction of all merchandise created with the Cezanne software. Of course, the products themselves contain copies of the typeface, not of the software. P22 will need to show that the words on the products were created with its software and not, for example, drawn by hand. It will also need to convince the court that it is appropriate to order destruction not only of “copies [of a copyrighted work] . . . made or used in violation of the copyright owner’s exclusive rights” and the means for making copies, 17 U.S.C. § 503(b), but also of items “that bear the result of the unauthorized use of P22’s Copyrighted works” (Complaint, emphasis added).
On the subject of Harry Potter and fonts, it is worth considering two typefaces made famous by the books themselves. First, the covers of the American editions (as well as the movie titles and the web site title for The Wizarding World of Harry Potter) feature the words “Harry Potter” in a distinctive, craggy lettering in which the vertical line of the letter “P” is shaped like a lightning bolt. A second typeface, featuring all capitals, exaggerated serifs, and somewhat irregular letterforms, is used for chapter titles and other text associated with the Harry Potter franchise, including navigation links on the “Wizarding World” web site. Fans can download free software for these fonts, presumably created by other fans: the first has been dubbed “Harry P” and the second, “Lumos.” Since, as noted above, typefaces do not enjoy copyright protection as such, Harry’s typographically inclined fans are free to create software to reproduce his signature fonts. However, one wonders whether at least the “Harry P” typeface, with its distinctive lightning bolt and use on covers and packaging, has become so associated with Harry Potter goods and services as to merit protection as a trademark or service mark. The words “Harry Potter” in the “Harry P” font are registered with the USPTO as a design mark, but what about other words displayed in the same typeface? Likelihood of confusion, or dilution? You be the judge: