Wednesday, April 19, 2006

Richard Eckersley and Book Design

Today's New York Times has an obituary of Richard Eckerlsey, a British graphic designer who put the University of Nebraska Press on the map. Here is an excerpt:

"Mr. Eckersley had been the senior designer at the University of Nebraska Press since 1981, producing hundreds of covers, jackets, interior layouts and promotional posters for scholarly — often abstract — books on modernist and postmodernist theory and criticism, including Louis Aragon's 'Treatise on Style.' Most of Mr. Eckersley's book designs, the design historian Roy R. Behrens said in a 2002 Print Magazine article, 'are characterized by typographic subtlety and restraint.'

A stickler for the finer points of spacing and arranging type, Mr. Eckersley turned out work that was resolutely functional. Yet through consistently meticulous compositions and a preference for bright, flat color, matte paper and minimal ornament, he created a visual identity for the University of Nebraska Press, which often received honors in book shows and design competitions. In 1989, however, Mr. Eckersley made a radical departure from his signature restraint, shaking up the field with his design for Avital Ronell's 'Telephone Book: Technology, Schizophrenia, Electric Speech,' an unorthodox study of Jacques Derrida, Martin Heidegger and the philosophy of deconstruction. This was the first book Mr. Eckersley designed on the computer, using new page-making software programs to interpret the author's complex postmodern ideas typographically.

Although the stark black-and-white cover of this long vertical book was rather quiet, he radically dislodged the interior text from conventional settings, and the book's layout sometimes upstages the text by deliberately impeding the act of reading, which is just what Ms. Ronell wanted. Throughout the book there are unexplained gaps and dislocations between sentences and paragraphs, forcing the reader to work at reading. On one page is a mirror image of the page that faces it. On another, snakelike trails of space that come from careless word spacing (called rivers) are intentionally employed. Some words are blurred to the point of being indecipherable; one line runs into another because of the exaggerated use of negative line-spacing.

Though some adventurous graphic designers were experimenting at the time with idiosyncratic computer type design, this was first attempt to apply a 'deconstructivist style' to a serious book.
Many of the same methods can be found earlier and later in Mr. Eckersley's layouts for Derrida's 'Glas' (1986) and its companion volume 'Glassary' (1986); and, to some extent, they are revisited in his designs for Warren F. Motte Jr.'s 'Questioning Edmond Jab├Ęs' (1990), Derrida's 'Cinders' (1991), Blaise Cendrars's 'Modernities and Other Writings' (1992), Eyal Amiran and John Unsworth's 'Essays in Postmodern Culture' (1994), and L. C. Breunig's 'Cubist Poets in Paris' (1995).

Among his design games, Mr. Eckersley regularly toyed with routine copyright pages by transforming them into typographic pictures suggesting the contents of the books."

This is art at very high level, but generally unprotectible under a Copyright Act that will protect shlocky fabric designs, automobile advertisements, and compilations of no note. There may be protection for dust cover art, just like there is for greeting cards and magazine covers, see Roulo v. Russ Berrie & Co., Inc., 886 F.2d 931 (7th Cir. 1989); Allied Mktg. Group, Inc. v. CDL Mktg. Inc., 878 F. 2d 806 (5th Cir. 1989) (possible copyright in format of postcard); Reader's Digest Ass'n v. Conservative Digest, 821 F.2d 800 (D.C. Cir. 1987); Roth Greeting Cards v. United Card. Co., 429 F.2d 1106 (9th Cir. 1970). But see Presby Constr. Co. v. Clavet, 61 SPQ2d 1184 (D.N.H. 2001), but the real problems arise with claims in typeface design, which are unprotectible. See Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978); 37 C.F.R. 202.1(e). Here, Mr. Eckersley was a master. Efforts by typeface designers to obtain protection (either through copyright or separate design protection) in the mid-1970s came to naught due to the opposition of book publishers and authors, concerned about injunctions being issued against books where the printer (unbeknownst to them) had used an infringing typeface.

Typeface designers were represented before Congress by the legendary Alan Latman, the greatest copyright lawyer of his day and a man loved and revered by all who knew him. There is copious information about this effort in the 1975 House Hearings on the revision effort, Copyright Law Revision: Hearings on H.R. 2223 before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Comm., 94th Cong., 1st Sess. (1975). Alan's willingness to take on a cause unpopular with his firm's then present and potential future clients was courageous and of a kind one rarely sees these days.

One can appreciate the concerns of authors and book publishers, but still question why their concerns are so markedly different than anyone else's. Typeface designers are not seeking after all, exclusive rights over the letter "A" (or any other letters), but rather for the calligraphic or other graphic expression of an "A." In any event, Mr. Eckersley's art lives on even though he does not.


Anonymous said...

Prof. Patry--
Two good reasons for not extending copyright to typefaces:

First, the utility doctrine. It's not possible to separate a specific letter A from its representation of the general letter A. Typefaces either have to bow to the utilitarian need to represent letters, or else they're not typefaces, they're just little non-alphabetical symbols that don't impart meaning and can't be read.

Second, copyright frugality. Granting copyrights to typefaces would certainly not provide any incentive, and the field is already highly incentivized. Thanks to modern technology typeface design has become much easier, and publication of these new typefaces much more likely. Adding copyrights would provide no public benefit, but would come at a significant public cost.

Basically, the only people who would support typeface copyrights are of two kinds. First, people who would stand to benefit pretty directly from them, viz. typeface designers and foundries. I don't fault them for being self-interested, but by the same token, I can legitimately be equally self-interested and oppose them because it is in my interests to do so.

The second group are fools. These fools adhere to the notion that copyright is a reward that should be mindlessly handed out to every artist, no matter what they do. They could not be more misguided. Copyright is not a reward, it is a bribe. We grant copyrights to artists to encourage them to do things that they otherwise would not do. If the artists would have done these things anyway, it is the acme of waste to give them a copyright.

If your child is a natural overachiever, you don't bribe them to give them a reason to get good grades; they'd do it anyway. If a cop is willing to let you go with a warning for speeding, you don't slip him a hundred bucks to do it; he was doing it anyway. If a politician is in favor of bringing pork to an employer in his district, you don't bribe him; he was doing it anyway.

Well, there are a ton of typeface designers. They are very productive right now. They are making more typefaces all the time. They are making a living at it, because their costs are rather low these days. Basically, they are doing it anyway.

Only an idiot would give them more, in return for nothing.

This is the same reason why we should not have automatic copyrights, not have copyrights for architectural works, why we should have shorter terms, etc.

It is because copyright is meant to be an incentive, and when it is not functioning as an incentive, or when the value that results from the incentive is less than the value that results from not offering it, it is just plain stupid to have the incentive.

Anonymous said...


Gee. Interesting that anyone who does not agree with your polemical (and wrongheaded, in my view) position, that copyright may only protect works that in every instance would not be made at all without such protection, is a fool and an idiot. You must have won many junior high school debates with that ad hominem tactic.

Maybe, just maybe, there are other reasons that idiocy or self interest that would lead a person to support protection for sufficiently creative typefaces. Indeed, I doubt that Bill Patry would make a dime off of such protection, and I do not consider him a fool or an idiot. Apparently you disagree. However, I believe that a reasonable person could disagree with several of your unsupported assumptions (such as your view of the utilitarian article doctrine, or your unsupported assertion that protection would never operate as an incentive to create) without being an idiot, a fool, or even a moron. But hey, you must never be wrong about anything you believe, right? Boy, I bet Bill Patry feels dumb right about now, having been showed up by such iron-clad rhetoric from an anonymous poster.

William Patry said...

Dear Anonymous I:

I'm more comfortable discussing things on the merits, which I think are as follows: Anon 1 is probably correct that typeface designers probably wouldn't create more typeface designs if protection was granted, so from that perspective one would ask why give them protection. I disagree this means they shouldn't get protection. First, the same argument is probably true of the vast amount of works that do receive protection. Second, I think typeface designers would be better off than they are now, and not at the public's expense, but rather in the contractual relations that they now rely on. Nor do I think there is any functional issue; one does have to make the letter A so that it is recongizably an A, but the level of freedom in doing so is immense. After all, there is no Platonic letter A that exists that all others are judged against.

Anonymous said...

Eltra strikes me as wrongly decided, and I wonder if there's more than that which leads Bill to declare that font designs are categorically unprotectible. I'm inclined to think that copyright protection should be thin, and infringement found only in slavish copying; but Anon's assertion that it is impossible to separate the expression from the idea is obviously contradicted by comparing different font designs.

Eltra stacks the deck when it frames the issue: "The appellant's right to registration necessarily turns on whether its design submitted for registration qualified as a “work of art” as that term was used in s 5(g)." Sec. 5(g) (now 102(a)(5)) was amended to read "pictorial, graphic, and sculptural works" in 1976, but the list was never exclusive -- only illustrative of the "subject matter of copyright," i.e., "original works of authorship fixed in any tangible medium of expression." You might not want to call a font design a work of art if you've never seen high-quality calligraphy, but it is certainly a "graphic" work.

You can divide the world between people who want to get paid for creating an original work of authorship and people whose self-interest is in getting it for free, and Anon certainly has the right to oppose copyright protection if his self-interest is served by free fonts. But the Copyright Act generally recognizes the public benefit in giving value to original works by prohibiting unauthorized reproduction so you can make money on the license. Commerce is a good thing, and it depends on value.

I'm not sure what to make of the difference between a reward and a bribe, but if fonts and font designers are plentiful because the incentives are high and the costs are low, then the market will assign a low value to the copyright. You can always resort to a public domain font, and Microsoft Word will always install a couple of dozen to choose from. Anon's self-interest, here, would seem to be satisfied as long as he can find a free font that isn't made up of "little non-alphabetical symbols that don't impart meaning and can't be read."

Original font design may be worth "nothing" to Anon, but the whole premise of intellectual property protection is that it might be worth something to somebody. The "idiot" who would give a font designer "more" wouldn't be getting "nothing" if he was getting an exclusive license to a distinctive design for which he paid exactly what he thought it was worth.

As an aside, I wonder why people post comments as "Anon." I'm all in favor of the right to anonymous speech, but unless you have cause to be afraid of being persecuted for your opinion, it seems like a mask that reveals insecurity and encourages incivility. I'm fairly caustic myself, but signing my name has a useful moderating influence on my choice of words.

John Noble

William Patry said...


The source for my categorical statement, aside from growing up professionally with the people who made the decision (which I recognize is not a source of law itself), is this statement in the 1976 House Judiciary Committee report, H.R. Rep. No. 1764, 94th Cong., 2d Sess. 55 (1976): "The Committee has considered, but chosen to defer, the possibility of protecting the design of typefaces."

Anonymous said...

My, my, now that was confusing. Poor Richard Eckersley.

Look, Eckersley was an undervalued--though surprisingly influential--book designer. And he could render a character or two. However, he was NOT a font designer/creator. Being able to, as they say, handle type is one thing. Putting together a font is another.

This who conversation, and as far as I can tell, the original post presumes that Eckersley made his own type. In 99.99999% of cases, he did not. He would, once in a while, draw a character or two to use in, say, a jacket or poster design. He was okay at it. His genius, and he was, as these things go, a genius with type, lay in academic monograph design. It's a strange place for a designer to flourish but he did. His covers are okay, his posters are so-so, but his monograph work is knockdown brilliant. But, let me repeat this slowly, he did not design fonts.

Well, carry on.