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I'm an IT professional who happens to be interested in EU law.

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.

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]).

Question: I have no problems whatsoever with properly crediting my borrowings, but:

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.? (Especially considering EU law.)

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

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    Are you interested in such protection under EU law as well? This may vary by jurisdiction. – David Siegel Apr 13 at 23:04
  • @DavidSiegel, I didn't mention it, but yes, I'm especially interested in the EU aspects indeed! – Herb Apr 14 at 7:04
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According to Wikipedia's article on "Intellectual property protection of typefaces" a typeface, 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 "The Last Time the US Considered Copyright Protection for Typefaces" from Typographica, whose author writes

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.

However, according to that same Wikipedia article linked above, typefaces are protected by copyright in Germany (up to 25 years), Ireland (15 years, Copyright and Related Rights Act, 2000 (Ireland), §§ 84-85. ), Russia (term unclear), and the UK (25 years, Copyright, Designs and Patents Act 1988 (c. 48), § 54) and possibly other countries.

However, a digital font, that is computer code to produce the letterforms of a typeface in scalable form, is 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 Adobe Systems, Inc. v. Southern Software.

The US law is described and summarized in "The Law on Fonts and Typefaces in Design and Marketing" by Ross Kimbarovsky (Feb 2019).

"Company Sues Over Unauthorized Use of Its Fonts" 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.

US Copyright office Circular 33 "Works not Protected by Copyright" (page 3) says:

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.

However, according to "Trade dress law protects look and feel of websites and digital layouts" from ClearSky:

[t]he Federal Ninth Circuit Court of Appeal, in the case Millenium Labs v. Ameritox 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.

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.

According to the Justia Opnion Summary of Millennium Labs. v. Ameritox, Ltd., No. 13-56577 (9th Cir. 2016):

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.

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.

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.

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

  • Thanks for your clarifications. So apparently, there never was a case. That's interesting by itself. Probably publishers are not too interested in keeping particular layouts, with the exception of, say, the for Dummies series and the like, already having been mentioned elsewhere. – Herb Apr 15 at 15:10
  • @Herb I don't really know if there has ever been a case on this issue in the US. I only know that I didn't find one, or a source that cited one. But I don't have the tools of a professional lawyer to find caselaw (paid database access). It may well be that trade dress provides all the protection publishers are likely to want. Many type designers wanted typeface protection back in 1976, the article on that which i linked is interesting. – David Siegel Apr 15 at 15:41
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The “look and feel” of literary work is protected by copyright

This includes things like font choice, heading structure and layout.

However, the copyright only extends to the original creative elements in the work. Which is why courts consider the overall “look and feel” rather than specific elements.

Most cases in this area have been over software but, in theory at least, it is equally applicable to books. As an example, the “For dummies” publisher would have a very strong case against anyone going too close to that look and feel.

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    I believe this is correct, but can you mention a case that so held, or another source to support this, since some do not believe that it is true? – David Siegel Apr 13 at 23:02
  • Are you sure that this is copyright rather than trademark or trade dress? – ohwilleke Apr 14 at 1:27

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