The curious case of Public Sans

This week, the US govern­ment—specif­i­cally a team within the GSA—released a font family called Public Sans. An irre­sistible colli­sion of typog­raphy, law, and open-source soft­ware followed. (Though I will be discussing prin­ci­ples of law below, I am not your lawyer, nor anyone’s lawyer, and nothing here is legal advice.)

Would you be surprised to hear that this isn’t the first font family released by the US govern­ment? In 2014, the Smith­sonian intro­duced the Cooper Hewitt type­face. As I under­stand it, the Smith­sonian hired type designer Chester Jenkins to adapt his Polaris Condensed design, and then, as the copy­right holder, had him move it under the SIL Open Font License (OFL). I like Cooper Hewitt a lot. I recom­mend it and use it exten­sively on the Racket websites.

Public Sans was born under different circum­stances, which turn out to be legally signif­i­cant. To make Public Sans, the GSA started with an existing open-source font called Libre Franklin. Libre Franklin is modeled on Franklin Gothic, orig­i­nally designed by Morris Fuller Benton in 1902. Not a bad concept, as Franklin Gothic is one of the few styles of sans serif that orig­i­nated in the United States.

Libre Franklin is a copy­righted work. Like the Cooper Hewitt type­face, it’s also avail­able under the OFL. The OFL permits the creation of deriv­a­tive works, as long as those works are them­selves released under the OFL. GSA employees modi­fied Libre Franklin to make Public Sans. Finally, they released Public Sans under the OFL.

So what’s the problem?

Open-source licenses, like all soft­ware licenses, are only possible through asser­tion of copy­right. Certain free-soft­ware advo­cates prefer to side­step this incon­ve­nient fact (akin to “keep your govern­ment hands off my Medicare”). For indi­vidual soft­ware authors, this usually poses no problem, because their copy­right arises at the moment the work is created. Thus, they’re free to put their work under any license, including an open-source license.

But US govern­ment employees are a special case. As a matter of federal law (17 USC § 105), they can’t assert copy­right in their work. Public Sans is an insep­a­rable mixture of copy­righted work (= the under­lying Libre Franklin font) and uncopy­rightable work (= the alter­ations made by the GSA). The GSA currently claims that Public Sans has been released under the OFL. But that’s impos­sible. To use this license, they’d first need to have a copy­right in their contri­bu­tions. But they don’t.

So where does this leave Public Sans? By default, the work of US govern­ment employees is in the public domain. Since the GSA can’t adhere to the terms of the OFL, it seems to me that Public Sans must like­wise be in the public domain. And because Public Sans incor­po­rates Libre Franklin, it has neces­sarily dragged Libre Franklin into the public domain as well.

“But how? Libre Franklin is copy­righted.” That would be the right intu­ition if the author of Public Sans were a private citizen. But again, the US govern­ment is special: it has the power to take private prop­erty and convert it to public use, though it has to pay. In some cases, the govern­ment takes the prop­erty without paying first. This is known as inverse condem­na­tion. By releasing Public Sans, it seems possible that the GSA implic­itly took owner­ship of Libre Franklin’s copy­right and moved the work into the public domain. Indeed, by naming the font “Public Sans”, the GSA plainly announced its inten­tion to do so. After all, it’s not “Privately Owned Sans”.

Speaking of which, the designer who holds (held?) the copy­right to Libre Franklin is Pablo Impal­lari, a citizen of Argentina. This makes me wonder whether the Public Sans project has also violated the Buy Amer­ican Act (41 USC § 8302). Though I’ll leave that ques­tion to better lawyers. In any case, it’s perplexing that the GSA released this font without first scru­ti­nizing these licensing issues. On the other hand, 63 federal judges have already deter­mined that our current admin­is­tra­tion has diffi­culty with the prin­ciple of soft­ware devel­op­ment collo­qui­ally known as RTFM.