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Lara Trump "Won't Back Down" from the Barbie Brand

By Vaidehi Mehta, Esq. | Last updated on

Lara Trump, daughter-in-law of the former president, has been making headlines for making her own version of other people’s intellectual property. Last year, she recorded a version of Tom Petty's "Won't Back Down" despite cease-and-desist letters from the singer’s estate. Now, she’s put her own flair on the hit brand from last summer, Barbie. She’s been making her own Barbiefied version of her father-in-law’s iconic “MAGA” baseball caps—but without the permission of certain intellectual property owners.

Although there’s some buzz on the internet about whether or not Mattel (the company that owns Barbie) will sue her, we think she has a different legal foe to fear: the people who made the font she used to type “MAGA” onto her hat — people who are probably not Mattel. Fonts have a really weird place in legal protection, and it’s not intuitive. Let’s get a crash course on the IP of fonts before we speculate about whether Lara is in for a legal battle.

Are Fonts Intellectual Property?

Once upon a time, fonts in the U.S. were ineligible for copyright protection because they were considered “useful articles” according to the U.S. Copyright Office. A "useful article" is an object that has a utilitarian function, a use intrinsic to the object and separate from how the thing appears. Examples of useful articles include clothing, furniture, machinery, dinnerware, and lighting fixtures. 

In general, useful articles are not eligible for copyright protection. However, the pictorial, graphic, or sculptural features of a useful article's design can be copyrightable if they can be identified separately from the utilitarian aspects of the article. For example, many courts have limited copyright protection for clothing to elements such as fabric prints. The Copyright Office gives another example: a carving on the back of a chair or a floral relief design on silver flatware can be protected by copyright, but the design of the chair or the flatware itself cannot, even though it may be aesthetically pleasing.

Even today, copyright law generally does not protect typefaces. A typeface is a set of characters with repeating design elements, such as letters, numbers, or calligraphy. However, typefaces may be protected by design patent, though this is rarely done. Computer code, such as the code used to direct the stylization of a typeface, may also be protected by copyright. 

The catch is that fonts may be protected under copyright law if they qualify as computer software or a program. "Bitmapped" fonts represent letters by a collection of pixels. They are considered computerized representations of a typeface and therefore are not protected by copyright law. 

To find out the details of a font's license, you can search for the font's name plus the word "license" or "commercial license" (for example, "Times New Roman commercial license"). You can also check the font file's metadata for details about the typeface, its creator, licensing information, and sometimes even copyright specifics. 

A great real-world example of litigation that Lara Trump could be facing is the famous Harry Potter font lawsuit we covered in our blog from many years ago. In that suit, NBC was accused of using a font for producing various items in their Harry Potter merchandise line (by the way, the first font that probably comes to your mind is not the one they used; the suit was over a font called Cezanne). That suit settled, so we don’t know the details or merits of the legal argument, but it basically would have boiled down to one thing: whether or not NBC used the font software.

Since fonts or typefaces themselves are not copyrightable, you can create your own exact replica or close imitation of any font face out there. NBC could have traced typeface from existing Harry Potter books or movie graphics and made their own font out of it. That’s how a lot of font makers get away with what seem to be blatant rip-offs. Take for example, the font “Parry Hotter,” whose maker doesn’t even try to hide the original source they were copying. A similar example is the font “Loki-Cola,” which you can also guess based on its name what it was trying to imitate.

In those scenarios, the fontmakers traced or otherwise manually reproduced the original script of an established brand. And sure, the Harry Potter logo and Coca-Cola logo themselves are protected IP, presumably largely under trademark. And those companies have had no shortage of imitators that they’ve taken to court and successfully sued – see, for example, the archives of countless Coca-Cola trademark infringements.

But that trademark protection does not stop font makers from designing a font face similar or even identical to the script used in these logos and turning them into a typable font based in software. That’s presumably how the makers of fonts like Parry Hotter and Loki-Cola could get away with making their near-identical font software based on the trademarked designs. And perhaps ironically, even the people who own Harry Potter or Coca-Cola IP would still have to get permission from those font makers to sell merch using their font software.

Litigation Looming for Lara?

What does all this mean for Lara? It boils down to whether or not she used the font software. Of course, in her case, we’re not dealing with a trademark case against her, for several reasons. For one, she isn’t using the actual “Barbie” logo. For another, the owners of the Barbie trademark, Mattel, aren’t the ones suing. Instead, in this scenario we are imagining the font maker is suing, and they don’t have a trademark claim. If Lara used their font software to type “MAGA” on her hats, they can sue her. If her team created their own design from scratch, nobody will have either a copyright or trademark claim against her — even if she was clearly ripping off someone else’s idea.

In either case, the certain good news for Lara is she can say she fits right in with her in-laws. For one, Lara, who was selling the Barbie MAGA hats for $47 a pop, the former president just debuted his own line of sneakers for $400 a pair.

For another, this is far from the Trump family’s first offense as far as using copyrighted works without the owner’s permission. When the former president himself ran for the 2016 election, he played Springsteen’s hit “Born in the U.S.A.” at rallies, to the singer’s vexation (Trump fans eventually realized that the song was not actually celebrating how Great America is). Various other musicians from Phil Collins to Creedence Clearwater Revival have also sent the Trump campaign cease-and-desist letters to stop using their songs at campaign events—there's actually a whole Wikipedia article about it. Tom Petty’s family has also asked Trump to stop playing the song “Won’t Back Down” at rallies long before Lara recorded her own version of the song last September.

It's not clear who would win a legal battle over the use of the Barbie font, but it is clear that Lara will win over her father-in-law with her brand antics.

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