Iconic singer Cher and Warner Bros. have asked a federal judge to dismiss a lawsuit against them for copyright infringement over the typography used on her 2013 album entitled Closer to the Truth.

In the 2016 complaint, which was filed in the United States District Court for the Southern District of New York, plaintiff Moshik Nadav claimed that in 2011 he created a “distinctive and unique artistic typeface” he called Paris and later created a new version called Paris Pro. Using these typefaces, he designed two logos, the Paris Logo and the Paris Pro Logo, which were registered with the United States Copyright Office. It was these logos and typefaces that Nadav says were used without authorization for the cover of Cher’s album; it features a picture of her with her name and the album’s title in the allegedly infringing typeface.

The March 6th motion to dismiss first argues that typefaces are not eligible for copyright protection, and points directly to the statutory language in 37 CFR 202.1. The section reads:

The following are example of works not subject to copyright and applications for registration of such works cannot be entertained:

(a) words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents;

(e) typeface as typeface. (Emphasis added).

The defendants further point out that courts have consistently held that fonts and typefaces are not entitled to copyright protection, even when they are especially unique.

The defendants next argue that the logos are not substantially similar either, based on the “ordinary observer” test from the Second Circuit. The test looks at whether “an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.” When there are both protectable and non-protectable elements present, “the usual ‘ordinary’ test becomes ‘more discerning,’ and requires the Court to ‘attempt to extract the unprotectable elements from…consideration and ask whether the protectable elements, standing alone, are substantially similar.” As Cher and Warner Bros. point out, the word “Paris” is in the public domain, and “Paris Pro” is likely not original enough to receive copyright protection, either. When comparing the logo and album cover, Cher and Warner Bros. argue that the two only share the letter “r,” and that Nadav cannot use other letters present in the typeface to claim similarity. In the complaint, Nadav had argued that the letters on the album cover are similar to the “e,” “l,” “T,” “t” and “u” of the Paris typeface. The defendants point out in a footnote that “only those portions of the copyrighted work appearing in the deposit copy filed with the copyright application can be used for the substantial similarity analysis.”

The defendants close by asking the court to dismiss the suit without giving the plaintiff an opportunity to amend his complaint because an amendment would be futile.

For more information on what types of works are entitled to copyright protection, please contact The Fried Firm.