Since opening shop in 2009, Zurich-based independent foundry Grilli Type has quietly built a reputation for expertly drawn contemporary designs. Its sharp serif GT Sectra (2013) has become a popular choice for text and display settings, while its clean, workhorse sans GT America (2016) has made its way onto everything from indie magazines to sparkling water cans. In early January, though, Grilli’s work found overnight notoriety when the CIA released a millennial-friendly rebrand with Sectra and America at its heart. Long known for leveraging modern design to advance state power, the agency seemed to be banking on punchy typography and stylized graphics to improve its image with a new generation of prospective recruits.
Grilli’s designers heard about the rebrand with the rest of us. In a January 5 tweet, the foundry distanced itself from the project, explaining that the CIA purchased the font licenses directly from its online shop. “We had no advance knowledge of this use, and no part in their redesign in any way.”
Grilli’s lack of control over the lifecycle of its designs is surprisingly standard. While custom jobs are easy to vet, retail fonts are readily available via foundries’ e-commerce platforms. Of course, like most software products, fonts aren’t really for sale: customers “buying” fonts are only purchasing the licensing rights defined by an end-user license agreement (EULA). Introduced by IBM in 1969 and popularized with the rise of personal computing in the 1980s, licensing agreements remain the primary means for software developers to regulate usage and limit liability. For those who care to read them, EULAs for font software are accessible pre-checkout; placing an order equates to signing on the dotted line. Typical agreements dictate parameters like the number of authorized users and application format—for example, whether the font will be used on desktop, web, or app.
Recently, some independent foundries (mostly based in Europe) have been giving their EULAs new reach by limiting the usage of their fonts on ethical grounds. Ethical clauses can range from restrictions on use in political campaigns to bans on use in hate speech, and foundries are learning from each other how to develop the right language. While these clauses are open to interpretation and can prove difficult to enforce, designers are hoping tighter restrictions will let them preserve some control even as their work changes hands.
Ethical clauses can range from restrictions on use in political campaigns to bans on use in hate speech.
The Designer’s Foundry in New Zealand was early to reimagine EULA limits, updating its license in 2014 to ban unwanted uses, including racist or malicious applications and “illegal pornographic material.” (TDF’s terms have since found their way verbatim into the license of Singapore-based Fable Design and, with a few modifications, into the license of the U.S. foundry Carmel Type Co.) Since launching in 2017, France’s 205TF has similarly prohibited a range of uses, including projects “related to the armaments or nuclear industries” and applications that are “harmful—in any way—to a person or group of persons.” Notably, some restrictions are more intrusive: 205TF and Carmel both set blanket bans on pornographic content, while TDF, Fable, and Carmel prohibit use in “blasphemous materials,” raising the question of whether EULAs can go too far in imposing specific beliefs.
For the majority of foundries setting restrictions, though, limits are focused on common-sense measures to prevent hateful uses. The German foundry TIGHTYPE, for instance, bars the “use of font software in any racist, homophobic, transphobic, or sexist context.” Co-founder Fabian Fohrer recalls writing the clause in 2017 following the increasing political success of Germany’s far-right Alternative für Deutschland party. “We thought about what we would do if we were confronted with this party,” he says. “The only way [to restrict use] was, and probably still is, to get that little sentence into the license agreement. If someone wants to steal that part of our end-user license agreement, they should go for it.”
“If someone wants to steal that part of our end-user license agreement, they should go for it.”
And designers have. The English foundry FrosType uses TIGHTYPE’s language in its own EULA, and a handful of other independent foundries have adopted similar provisions. The Swiss agency ABC Dinamo, for one, bars using its fonts “to spread hate, racism or any other form of discrimination” and also requires pre-approval for political or religious applications. Optimo, Lineto, Letters from Sweden, and Detail don’t impose specific bans but do screen political campaign requests.
For designers on a budget, hiring a lawyer for EULA updates is often out of the question, so many concerned foundries opt to draft their own restrictions or adopt existing models. In the wake of the CIA’s rebrand designer Raoul Gottschling proposed a template that others can follow for restricting usage on moral grounds. Taking TIGHTYPE’s own self-drafted clause as a base, Gottschling also forbids use “in projects or for clients that actively or passively aim to limit the rights of displaced persons, people with disabilities or human rights in general.” Inspired by Gottschling’s suggestion, Oslo-based Good Type Foundry updated its EULA in January to prohibit discriminatory uses and to block anti-environmental applications. Founder Kenneth Knutsen sees the update as a natural extension of Good Type’s pro-bono work and discounted licensing for projects supporting social justice and sustainability.
But are these clauses specific enough to be enforceable? Christine Bateup, a practicing lawyer and director of business and licensing at New York’s Frere-Jones Type, tells me, “There’s a real problem with vagueness and ambiguity in how such provisions are typically drafted, particularly where they target categories of expression.” Bans on designated industries could prove easier to enforce, but omissions can read as accidental endorsements. And by tying restrictions to specific messages or business categories, foundries still leave the door open for other objectionable applications. You might bar use in texts opposing reproductive rights, for example, but Hobby Lobby, whose 2014 Supreme Court win dealt a blow to contraceptive care, could still advertise a crochet kit with your typeface front and center.
Loopholes aside, ethical restrictions are theoretically binding: consumer contracts expert Florencia Marotta-Wurgler compares them to provisions against anti-social behavior common in social media terms-of-service agreements. But while Twitter can promptly block users in violation of its “hateful conduct” ban, enforcement is tougher for small foundries. Simply finding violations is laborious, and fighting unauthorized uses can demand more time—and more legal fees—than many foundries can afford.
Whether they see restrictions as unnecessary or simply a lost cause, most independent foundries have no ethical limitations in place. In a sampling of 70 independent foundries worldwide, only six require pre-approval for political campaigns, and only 11 include other ethical restrictions. Out of the 19 U.S. foundries analyzed, just one imposes ethical limits.
“I think one reason such provisions aren’t common in the U.S.,” Bateup says, “is that although the First Amendment generally doesn’t apply to private actors, there is a broader culture in this country strongly supportive of free speech,” making businesses hesitant to interfere. She notes that Frere-Jones Type will decline custom jobs for ethical reasons, but retail restrictions feel impractical to enforce. For fellow New York foundry Commercial Type, redistribution is the way forward: “If people have the budget to spend on typefaces, they’re going to spend it somewhere,” says Kara Gordon, type designer at Commercial Type. “So you can take that company’s money and use it against them. I think that within a capitalist framework, that’s probably the best option.”
Opinions on restrictions often reflect divergent outlooks on the very function of type. Is type an art form or a utility? While the type-as-art perspective holds weight in European legal tradition, the U.S. Copyright Office considers typefaces basic tools—a view that may inform the no-restrictions policies of foundries in the States. “The way the Copyright Office thinks about it, [a typeface] is a building block of expression. It’s not expression itself,” explains Christopher Sprigman, professor of Law at NYU and co-director of the Engelberg Center on Innovation Law and Policy. “And so we protect expression; we don’t protect words or phrases or the typographical artifacts from which words and phrases are constructed.” If typefaces are vehicles for language first and visual works second, then excessive restrictions become problematic. One way to look at it, Sprigman notes, “is that we don’t want to lock up these basic elements of expression.”
“We don’t want to lock up these basic elements of expression.”
While most U.S. foundries have let their EULAs stand without added restrictions, songwriters have clamored for change election cycle after election cycle, as campaigns co-opt their work for rally soundtracks. Although musical compositions enjoy copyright protection in the U.S., songwriters are not granted the “moral rights” (including the right to integrity) afforded to their counterparts in Germany or France. Efforts to contest unwanted uses on the basis of “false endorsement” or other non-copyright claims have found little success, but licensing barriers have steadily increased. Mammoth performing rights organizations like the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) have divorced political campaign licenses from their standard blanket agreements for public-venue playbacks, permitting artists to withhold rights from specific campaigns. While the battle is far from over, discussions of songwriters’ rights are now widespread in both popular media and legal scholarship, driving the conversation forward.
Type designers could take a cue. At the very least, moves to limit usage could foster a similar discourse around font licensing (a field that has received comparatively little attention). Even the flimsiest EULA clause can stand as a statement of values—if not legally defensible, still a deterrent to unwanted customers and a catalyst for conversation. Dialog is needed around the thornier questions of licensing limits. Some EULAs will arguably overstep, imposing specific religious or moral values—does promoting designers’ autonomy mean accepting such prescriptive approaches? As more foundries consider restrictions, discussion is also needed around tactics for implementation. How do you craft airtight language without a license the length of a phonebook, or challenge uses by the likes of the CIA without a veritable army of lawyers? It’s not as simple as Gottschling’s directive “your work, your rules,” but nothing will shift if designers don’t start talking.