Zazzle’s Font Copyright Battle

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Zazzle has earned a reputation as being both a place to buy and sell unique gifts. 

The site works by offering users a series of tools to design a variety of products including cards, shirts, mugs and much more. Users can then sell those products in their store, with the products themselves being produced and shipped by Zazzle itself and the creator earning a royalty rate.

However, a recent article by Heather Tal Murphy at Slate highlights a potentially messy battle taking place over one of the site’s most powerful tools: Their provided fonts.

That’s because one typographer has accused Zazzle of copyright infringement in one of their most popular fonts. However, Zazzle has hit back with arguments that could have significant impacts on not just typographers, but the development of artificial intelligence.

As such, understanding this case is important for virtually anyone involved in technology, not just typographers and graphic designers.

The Battle Over Blooming Elegant

The lawsuit was filed by typographer Nicky Laatz. Laatz alleged that Zazzle used three of her typefaces, Blooming Elegant Regular, Blooming Elegant Sans, and Blooming Elegant Hand, without her permission. 

In doing so, she alleges that Zazzle made the typefaces available to its millions of designers, many of whom used it on products for sale.

Zazzle, for their part, removed the trio from their library last summer. This caused a great deal of confusion and strife for users as their fonts were automatically substituted and, as pointed out in the Slate article, many users felt the fonts chosen were significantly worse.

Zazzle did claim to have a license, but could only point to a $20 single-user license obtained by one of their engineers in 2017 under the person’s name. Zazzle claims they also tried to buy a server-based license, but didn’t hear back from Laatz.

While the case may seem straightforward, there are a few interesting wrinkles.

First, as we discussed in 2015, one cannot copyright the alphabet or a typeface. That means the simple use of the typeface or the fonts that it are based on it is not actionable. 

However, Laatz has a response to that. First, she is accusing Zazzle of breach of contract for violating the license and, more importantly, of copyright infringement for copying the software she created.

That’s because, while the typeface itself can’t be protected by copyright (though sometimes through patent or trademark), the actual computer files that make the typeface usable are small pieces of software that, in general, have been held to be protectable.

However, Zazzle has a response to that as well. They believe that Laatz likely used a font-design program that automatically generated the code. As such, they argue that the software doesn’t qualify for copyright protection.

To support this, they point to an exchange between Laatz and the United States Copyright Office. There, she said she hand-coded the designs and instructions, but Zazzle’s lawyers dispute this.

In the end, much of this case may hinge on just how much human involvement Laatz had in developing the software that Zazzle would go on to use.

The case is ongoing, but it is definitely one to watch. That’s because the outcome could have significant implications for a variety of tech fields.

Why This Case Could Be Important

For typographers, the stakes are obviously very high. Typographers already operate in a very difficult environment, often putting weeks or months into new typefaces that are easily pirated and often enjoy very limited copyright protection.

This case could point to new boundaries around that protection, essentially making it so that those who generated their code don’t enjoy copyright protection. 

That said, it could also bring about more clarity in this space, letting typographers know what they need to do in order to ensure that their work is protectable.

However, the more broad implication comes when we look at artificial intelligence. 

AI systems currently not only generate code, but images, text and other types of work. The United States Copyright Office has made it very clear that works generated by AI don’t qualify for copyright protection. However, there’s a wide gap between works fully generated by AI and works wholly generated by humans.

This case, like countless others, likely sits somewhere between those two extremes.

The interplay between human creativity and technology is an ongoing debate. At what point does the human lose control and their creativity no longer enough to qualify for protection? These are not easy questions, but will likely be some of the most important ones to address over the next few years.

It’s likely that this case will have implications that go far beyond typography and may help us understand where the line between human and machine will be drawn, for copyright at least.

Bottom Line

It’s strangely fitting that typography would be one of the first test cases to come about in the shadow of AI. 

The underlying creative work doesn’t enjoy copyright protection. That means, for a typographer to have any practical copyright protection, the code must be protectable. However, most typographers aren’t programmers, so, they rely on tools to generate or help generate that code.

As such, this is a high stakes battle without a lot of clear answers. 

While it might seem like there are simple solutions, such as separating work computers do at human direction from work computers do without direction, those ideas start to get fuzzy when you apply an AI layer to it. 

As machines get smarter and do more for humans, there is the risk that they also take over the all-important element of creativity. Once that happens, copyright goes with it.

But is almost as much a question for philosophy as it is law. Finding borders around intangible things is what copyright has always been tasked to do, but this may be one of its greatest challenges ever. 

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