Cher Knows You Can Copyright This Font, But Not This Typeface

By: Brandy Nickoloff*| Staff Writer

https://pixabay.com/en/cher-cherilyn-sarkisian-entertainer-509344/

Moshik Nadav designer behind Moshik Nadav Typography brought suit against Cher in the Southern District of New York for unauthorized use of his “Paris Logo”. Nadav claimed that Cher, her label Warner Bros. Records and other defendants copied the artistic elements of the logo for Cher’s 2013 album Closer to the Truth.

Nadav has a passion for design and sees typography as a distilled form of design. He has described his work as typography that composes high-end, lush typefaces that perfectly suit any premium design. The Moshik Navdav website displays Nadav’s different typefaces which include Lingerie, Paris, and Paris Pro, among others. Visitors of the website are able to purchase the fonts for use through different types of licensing structures. The right to use the fonts is given directly through the website with the terms of use policy acting as a “binding legal agreement” between the Nadav LLC and the web user. Nowhere on the site is there any symbol or language amounting to a federal copyright.

U.S. copyright laws protect “original works of authorship” in categories such as writings, art work, and music. The copyright gives the owner the right to control the way his work is used by others. A copyright exists from the moment that an original work is created. Registration of the copyright is not required for protection, but is recommended because it creates a public record of the copyright, can create eligibility for statutory damages and attorney’s fees in successful litigation, and, if an infringement happens within the first five years of publication, it could be considered evidence of a prima facie case in court.

The failure to denote the Nadav designs as protected under federal copyright law is not a surprise to Cher’s defense counsel, nor is it a surprise to most intellectual property law attorneys. While copyright protections exist upon completion of the original work regardless of registration, the work must still meet the definition of an original work under the law. Nadav’s problem is that as a general rule copyright laws do not cover typefaces. Interestingly, the law does cover fonts. The difference is that a font actually qualifies as computer software or programming. While, the style that is displayed on the computer is a typeface, the font is the software the tells the printer how to print the image that matches the typeface. In reality, most fonts that are used today are computer software or programs that meet the threshold of an original work that can be copyrighted.

It is unclear whether or not Nadav claimed his design was infringed because it was a font, typeface, or some other protected design. What is clear is that Nadav’s counsel realized the weaknesses of their claim because it was Nadav that requested a dismissal. The dismissal was granted without prejudice meaning it can be brought again. This may mean that Nadav knows his claim to be weak because his designs are not registered or maybe because they are not protected at all, but in either case the dismissal without prejudice preserves the claim so that it can be brought again. Only time will tell if this suit really did lack merit, or if Cher will eventually have to answer for some kind of authorized use.

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Brandy Nickoloff is a second year law student at Wake Forest University School of Law. She holds an undergraduate degree in Business Management from Grove City College, a small liberal arts college located one hour north of her hometown of Pittsburgh, PA. Upon graduation she plans to pursue a career in transactional law.