IP Law Daily, Copyright—N.D. Cal.: Online graphic design platform Zazzle cannot avoid copyright infringement claim, (May 13, 2025)

By Matthew Hersh, J.D.

Questions about the statute of limitations, validity of copyright, and potential fraud on the Copyright Office are better left to the jury.

An popular online platform accused of infringing upon a font created by a graphic artist was not entitled to summary judgment on statutory limitations grounds because the artist, despite receiving multiple notifications outside the limitations period via Instagram and email that the platform was retailing her work, could plausibly persuade a jury that she paid no attention to those notifications, the federal court for San Jose, California has held. The court, in rejecting the online platform’s defense to the copyright infringement claim, also found that the artist had submitted sufficient evidence to show that her font qualified for copyright protection and that a reasonable jury could be persuaded at trial that any inaccuracies she may have made during the registration process were not done with the requisite knowledge to constitute fraud on the Copyright Office (Laatz v. Zazzle, Inc., No. 5:22-cv-04844-BLF (N.D. Cal. May. 9, 2025)).

The lawsuit was brought by Nicky Laatz, the creator of a set of custom fonts entitled the Blooming Elegant Trio. The font designer markets her font, in the form of a software file that renders the font when executed, through an online marketplace called Creative Market. Those who wish to use the font may pay twenty dollars for a license through that online marketplace. Purchasers of the font must also agree to license terms—viewable by clicking a hyperlink on the purchase page—imposed by the marketplace at the time of download.

The font designer came to believe that a company called Zazzle had used her font in ways that exceeded the license. Zazzle operates an online design platform that provides tools its users can use to design and order digital and physical products such as invitations, clothing, holiday cards, and mugs. Specifically, the font designer contended in her 2022 complaint, since amended, the design platform had exceeded the license terms by hosting the font on more than one server and by allowing multiple users of its site to use the font to make their own designs. The font designer alleged copyright and trademark infringement under federal law as well as breach of contract and multiple claims of fraud under California law.

The two parties have already battled a number of rounds in the California court. After the court denied Zazzle’s motion to dismiss the claims in 2023, Zazzle filed a counterclaim alleging invalidity of Latz’s copyright registration. The court then denied Latz’s motion for summary judgment later that year and then, several months later, denied Latz’s motion to dismiss the counterclaim. After discovery, Zazzle moved for summary judgment on all counts, leading to this opinion.

Statute of limitations. The court first declined to grant summary judgment to Zazzle on the statute of limitations defense. Zazzle argued, among other things, that it publicly announced the addition of the BE Trio to its platform in 2017, that the artist subsequently received dozens of promotional emails from Zazzle referencing her font, that the artist was tagged in Zazzle Instagram posts referencing the font, and that the artist’s husband received messages from potential customers about the availability of the font on Zazzle. But none of this was enough, the court found, to take the matter away from a jury. Although Zazzle had submitted “strong evidence that [the artist] had at least constructive knowledge that BE Trio was offered on Zazzle before 2020,” the court noted, the artists submitted evidence that she did not check Instagram messages or notifications, that she was not aware that Zazzle had tagged her in its Instagram posts, and that she primarily relied on a different platform to communicate with her customers. The artist had therefore established, at least at a minimum, that “a reasonable jury could credit her testimony and find that she did not have inquiry or constructive notice of Zazzle’s allegedly unauthorized use of the BE Trio during the limitations period.”

Validity of copyright. The court then declined to grant summary judgment to Zazzle on the validity of the artist’s copyright. As the court made clear, “copyrightability of fonts is limited.” Typeface as typeface—i.e., the design of a font—is not copyrightable. However, the Copyright Office’s Compendium makes clear that a computer program that generates a particular typeface or font “may be registered if the program contains a sufficient amount of original authorship in the form of statements or instructions to a computer.” Moreover, so-called “font data”—that is, the underlying data that is used by font software to render characters in a particular typeface—can also be registered as a literary work. At the instruction of an examiner in the Copyright Office, the court noted, the artist registered the BE Trio as font data, rather than as a computer program. Was the registration valid? A jury could find that it was, the court concluded.

The court first found that the artist had introduced sufficient evidence—that is, enough to get to the jury—over whether the registration was valid as a computer program. To be sure, the court noted, the BE Trio was labeled as font data rather than a program in the registration certificate, the court noted. Nonetheless, the court emphasized, there was “no authority restricting the basis on which validity is found.” And as a computer program, the court noted, there was ample evidence that the registration was valid. Here, the court noted, the artist had submitted evidence that she hand-created the software that implements the BE Trio fonts on a computer. “If credited by the jury,” the court noted, that software could qualify under the Compendium’s definition as “a scalable font output program that produces harmonious fonts consisting of hundreds of characters may require numerous decisions in drafting the instructions that drive a printer or other output device.” The claim would therefore go forward on this basis.

But even though the artist could go forward with her claim that the BE Trio was registrable as a software program, the court found, it could not go forward with her claim that the font was registrable as font data. Here, the court noted, the problem for the artist was the lack of human authorship. In creating her fonts, the court noted, the artist initially designed them using the aid of software from Adobe Illustrator and FontLab Studio. In order to create the material that she submitted to the Copyright Office as a deposit copy, the court noted, the artist used FontLab to convert her designs to a human-readable data form and then created PDF versions of those documents. As a result, the court noted, those PDF files themselves did not constitute human authorship because “the font data contained therein was created by FontLab, rather than [the artist].” Thus, the artist could not claim her registration was valid as font data.

Fraud on the Copyright Office. The court also declined to grant Zazzle’s motion for summary judgment on the grounds of fraud on the Copyright Office. Zazzle argued that the artists withheld the fact that the font data in the PDF files was generated by FontLab and that she falsely represented that she had “hand coded” the font data. But there were enough disputed facts over this issue, the court found, to make summary judgment inappropriate here. For example, the court noted, there was evidence that the artist that the Copyright Office, through her representative, stated merely that she “personally created the designs and instructions” in the file submitted and the PDF files reflected her “original creative work. There were “at least genuine disputes,” the court noted, as to whether these statements to the Copyright Office were inaccurate, whether the artist knew her submissions failed to comply with the Copyright Office’s requirements, and whether any inaccuracies were material to the registration of her copyright. The issue would have to be decided by a jury.

Infringement. The court also declined to grant Zazzle summary judgment on the merits of the infringement claim itself. Zazzle argued that the version of the BE Trio that it obtained and distributed were only the human-readable source code versions and not the object code versions. But the Copyright Office “views source code and object code as two representations of the same work,” the court noted. Thus, assuming that the copyright registrations were valid, the court noted, it could not conclude as a matter of law that Zazzle did not infringe the artist’s copyrights.

Trademark infringement. Although the court declined to grant summary judgment to Zazzle on the copyright claims, it gave Zazzle a victory on the trademark claim. This claim revolved around Zazzle’s use of the BLOOMING ELEGANT mark in its marketing of the work. But Zazzle had sufficiently shown as a matter of law that it qualified for the nominative fair use defense, the court found. In order to establish that defense, the court noted, Zazzle was required to show that the font was “not readily identifiable without use of the trademark,” that “only so much of the mark or marks may be used as is reasonably necessary to identify the product or service,” and it had not “nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.” Zazzle adequately proved all of these evidence at the summary judgment stage, the court found—thus requiring dismissal of the trademark claim.

The Case is No. 5:22-cv-04844-BLF.

Judge: Freeman, B.

Attorneys: Chad E. DeVeaux (Bartko Pavia LLP) for Nicky Laatz. Rachel M. Kassabian (Quinn Emanuel Urquhart & Sullivan, LLP) for Zazzle, Inc.

Companies: Zazzle, Inc.

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