Be Aware of the Potential Risks Related to the Commercial Usage of Chinese Fonts

Many companies tend to use distinctive fonts to attract consumers’ attention in promotion. However, if any company has made a wrong choice, such distinctive fonts might attract the attention of the font or font bank owner/developer, which might trigger a copyright infringement dispute. The reason for such dispute is that the font or font bank might be considered as the work stipulated in the “Copyright Law” in the judicial practice, if any company uses such font without authorization, it shall have infringed the owner/developer’s copyright.

Then, when a font or font bank could be considered as the work stipulated in the “Copyright Law”?

First, regarding the font (a single character), there are different opinions. Taking a series of cases of Founder Company for example, in the case Founder v. Weifang Wenxing in 2002, Beijing No. 1 Intermediate People’s Court and Beijing High People’s Court considered that the single character was composed of lines, and had a certain aesthetic meaning of calligraphy art, it should be deemed as the art work as stipulated in the “Copyright Law”. In the case Founder v. P&G in 2008, Beijing Haidian District People’s Court held that the single character should not be deemed as the art work as stipulated in the “Copyright Law”, so P&G had not infringed Founder’s copyright. The court of the second instance upheld the original judgment, but the reason changed into that P&G had obtained the implied permission of Founder, so it had not infringed Founder’s copyright. In the case Founder v. Battle, the Supreme People’s Court held that each font (font bank) is consisted of the above instruction and relevant data, instead of lines, color or other methods, which could be considered as a flat or three-dimensional art work, so the font (font bank) shall not be considered as the art work as stipulated in the “Copyright Law”.

However, generally speaking, “if compared with the basic strokes of the fine art in the public, the form of a font has a distinctive feature, and meets the originality requirements on the unique aesthetics”, (Quoted from [2012] Su Zhi Min Zhong No.0161), then it has a higher possibility to be considered as the art work as stipulated in the “Copyright Law”. In other words, it is very risky for a company to use a font in business without authorization.

Second, regarding the font bank, it is very possible to be protected by the “Copyright Law”. However, there are different opinions on the category of the copyright for the font bank. Whether a font bank is the art work or a software. In the Founder v. P&G case hereinabove, Beijing Haidian People’s District court held that the font bank had certain originality and should be deemed as the art work. In the case Beijing Hanyi v. Shuangfei, the Jiangsu High People’s Court held that the font bank was a combination of digitized fonts, which are created with the original handwrite font, and it is digitized and processed by human or computer according to the style of the typeface. The nature of the font bank is a combination of data and function algorithms, which shall be considered as a software. Anyway, it is riskier for a company to use a font bank without authorization.

Therefore, when selecting fonts or font banks for promotion, a company shall check whether those fonts or font banks are free for commercial usage, e.g. Microsoft’s Song Font, Kai Font, etc., if not, the company shall obtain the authorization in advance.