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Meet Frank Martinez, a Brooklyn lawyer who has crafted one of the strangest legal practice areas. Some might call him a font troll. On behalf of various font designers, Martinez has previously filed separate multi-million dollar claims against CNBC, Universal Studios, and TNT for allegedly stealing fonts on products ranging from Harry Potter merchandise to Falling Skies screen credits.
Martinez is back again with a new one. On Wednesday, client Brand Design Co. filed a $3.5 million claim against NBCU for allegedly breaching copyrighted font software on the its websites.
In the past, all of the font theft lawsuits have settled. Martinez has not only come to resolution in claims made against CNBC, Universal Studios, and TNT, but also avoided litigation after sending cease-and-desist letters to other targets, including mega-selling recording acts who allegedly were less-than-careful about crafting the lettering on their album cover art.
The deals could mean that Martinez is making multi-million dollar claims but extracting much less via settlement as defendants weigh the cost of litigation versus ponying up a few bucks to make the nuissance go away. But some companies like NBCU keep getting hit again and again in lieu of testing the plaintiff’s copyright claims in court.
In the latest lawsuit, Brand Design alleges that its records show NBCU subsidiary Oxygen Media purchased a “basic, 36 workstation (users) license to use the CHALET typeface font software.”
But the plaintiff says the licensing agreement did not permit the use of copyrighted font software on NBCU’s websites. In addition, NBCU is accused of using a free font software conversion utility offered by an organization called Font Squirrel to convert and alter the typeface font into a format suitable so that it could be embedded onto Internet websites. This purportedly violates licensing terms on modification.
The complaint says that “approximately 20,000 unauthorized and infringing downloads of plaintiff’s copyrighted CHALET typeface font software has occurred via the nbcuni.com website.”
The $3.5 million damages calculation is the result of multiplying 20,000 by the $175 cost of purchasing the CHALET software.
As we’ve noted before, fonts can’t be copyrighted, but software can be. Many font softwares come with licensing terms that restrict use. A potential problem is proving an alleged infringer used the software to create a misappropriated font, rather than just tracing it or coming to a similar font by coincidence. Plus, modification of a font as alleged in this lawsuit could raise other complications.
But, of course, the catch is that it’s expensive for everyone — including the defendants — to make Martinez’ clients go through the hard work of demonstrating their claims and overcoming potential defenses in a jury trial.
Having been hit by Martinez for the third time in as many years, will this time that NBCU actually stands up? We’ve reached out to a spokesperson for the company and if we hear anything, we’ll update.
E-mail: email@example.com; Twitter: @eriqgardner
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