Will a Misused Font Damage the Harry Potter Merchandising Empire?

On Tuesday, P22 Type Foundry, Inc., owner of Cezanne font software, sued Universal Studios, Inc. / NBCUniversal Media, LLC, among other defendants, for copyright infringement. P22 accuses defendants of improperly using font software to create and sell Harry Potter merchandise. Specifically, defendants are accused of misusing the Cezanne font set, which was created for the Philadelphia Museum of Art and which represents the handwriting of Paul Cezanne.

P22 alleges that:

Defendants have created, used, distributed or caused others to create, use or distribute Plaintiff P22's CEZANNE REGULAR font software as a resource in the creation of Defendants' Harry Potter merchandise including, inter alia, the "Hedwig Pillow, "Dragon Bright Youth T-Shirt, "Dragon Sketch T-Shirt, "Ministry of Magic Messenger Bag, "Ministry of Magic Ladies T-Shirt, "Dementors Ladies T-Shirt, "Ministry of Magic Cap, "Dementor Cap, "Dementor Name Pin" and "Hogwarts Stationary Set" (collective, the "Merchandise") which have been made available for sale via Defendant Universal's recreational theme park and via the Internet.

The complaint goes on to state:

To the extent that Defendants or Defendants' agents may have purchased a license to use the CEZANNE Font Software, the uses complained of herein are not authorized under the basic license governed by P22's EULA [End User License Agreement], which prohibits, inter alia, the use of the Font Software to create goods for sale in the manner complained of herein.

In seeking relief, P22 is asking for but not limited to:

  • destruction of all relevant copies of Harry Potter goods and merchandise;
  • imposition of a constructive trust for all monies received from the sale of all infringing goods; and
  • actual damages in the amount of $150,000 per infringing use or statutory damages of $1,500,000 under Copyright Law, whichever is greater.

View or download the entire complaint filed in P22 Type Foundry, Inc. v. Universal Studios, Inc. and NBCUniversal Media, LLC, et al., 11-03204 (E.D.N.Y. July 5, 2011)

For more information on typefaces and copyrights, read:

1-2 Nimmer on Copyright § 2.15 Typeface Designs (Non-subscribers can purchase Nimmer on Copyright at the LexisNexis Bookstore)

Are typeface 1 designs copyrightable? Any argument of copyrightability may appear to be foreclosed by reason of the House Committee's statement that it "has considered, but chosen to defer, the possibility of protecting the design of typefaces ... . The Committee does not regard the design of typeface ... to be a copyrightable 'pictorial, graphic, or sculptural work' within the meaning of this bill and the application of the dividing line in section 101." 2 The House Committee thus did not deny that typeface designs constitute "writings" in the constitutional sense ....

 

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