Two weeks ago, type designer Tobias Frere-Jones filed a blistering lawsuit against his erstwhile partner, Jonathan Hoefler, claiming that he'd been cheated out of his half of Hoefler & Frere-Jones, one of the world's most renowned type foundry.
Claiming that he'd fallen victim to the most "profound treachery and sustained exploitation of friendship, trust, and confidence," Frere-Jones claimed that Hoefler had failed to honor an agreement made 15 years earlier, giving him 50% ownership of the company the two had made famous.
The bitter and acrimonious lawsuit came as a shock to the design world, the equivalent of the Beatles breaking up. What can creatives looking to enter similar partnerships learn from the Hoefler & Frere-Jones mess?
According to the lawsuit, Frere-Jones was having a meal or maybe a cocktail at Manhattan's Gotham Bar & Grill in 1999, when Hoefler approached him with a proposition.
Up until that fateful meeting, Hoefler and Frere-Jones had been competitors. Frere-Jones worked for the Font Bureau, a digital type foundry based in Boston founded by noted type designer David Berlow and his partner Roger Black, where Frere-Jones had been working since 1992. While at Font Bureau, Frere-Jones created many of the foundry's best known typefaces, including Whitney, Interstate, Poynter Oldstyle, and more, and was lecturing at the Yale School of Art.
Hoefler, on the other hand, ran the one-man Hoefler Type Foundry, and had designed the Hoefler Text family for Apple in 1991, along with original typefaces for brands such as the New York Times, Sports Illustrated, and Esquire. In 1995, he was named one of America's 40 most influential designers by I.D.
Hoefler's proposition was simple. They were two of the rising stars of the typographic world. They could either fight each other, or team up to become kings of the type world. Hoefler suggested that Frere-Jones leave Font Bureau and move to New York, bringing his fonts with him to Hoefler Type Foundry, where he was assured he would become equal co-owner.
According to intellectual property attorney Emily Danchuk of the Copyright Collaborative, this moment—in which both parties were sitting over cocktails, talking about ruling the type world together—was probably where Frere-Jones made his first mistake.
"When you're striking a deal with someone, the first question you really need to ask yourself is, 'Do I trust this person? Do I like him?'" Danchuk says. "If you don't even like a person you're going to become partners with, you're not going to have a good relationship. No matter what agreement you have, it's not going to cover issues like civility and decent human behavior, which can make it very hard to resolve disputes going forward."
The biggest, most obvious mistake that Frere-Jones seems to have made, though, was not getting an explicit agreement in writing from the start. Instead, he seems to have trusted that the details would be worked out in due time. But they weren't. Even as Frere-Jones turned over his fonts to Hoefler Type Foundry, a finalized deal for 50% co-ownership of the company was never inked.
Hoefler threw Frere-Jones a few bones, it's true: the name of the company was changed to Hoefler & Frere-Jones in June 2003 to honor Hoefler's promise of Frere-Jones's "name on the door." Yet despite the fact that, in name, the two were partners, Frere-Jones was simply a staff member of what remained, legally and financially speaking, Hoefler's organization.
In the end, Frere-Jones claims that Hoefler was able to stall for 15 years on actual co-ownership of the company before Frere-Jones had had enough. So much for working out the details in due time.
This is a mistake that creatives frequently make, according to Danchuk. They cave into their emotional eagerness to make an agreement, without working out the details ahead of time.
"It's very common for small business owners and artists to avoid expressly writing the terms of their agreement down, because they don't want to think about their partnerships ending on bad terms," Danchuk says. This leads them to tiptoe around the terms of the agreement that they find onerous, ugly, tedious, or otherwise painful.
But ironing out these details is incredibly important, as the case of Hoefler & Frere-Jones amply proves. Danchuk says such agreements help put parties on the same page, making it less likely that an agreement will be breached in the future.
It does seem that Hoefler and Frere-Jones's agreement was not 100% verbal. Court papers mention email exchanges between the two legendary type designers, which seem to refer to the terms of the deal. In one such exchange cited in court papers, Hoefler said he was "working" on the issue of co-ownership, and asked for Frere-Jones to stop "harassing" him about it.
That email could be used in court by Frere-Jones's lawyers as evidence of a contract between the two parties. But email is not enough, warns Danchuk. "Don't depend on email for backing up contracts or agreements," she says. "While you may think that an email agreement is clear as day, interpreting that agreement is ultimately up to the judge, because it's open to interpretation."
Instead, an explicit legal contract drafted by a lawyer agreeing upon the terms of the partnership should be settled at the outset of any partnership. But creatives like Hoefler and Frere-Jones shouldn't just trust their lawyers to iron out the terms of the deal. They need to make sure they understand what they are signing.
Danchuk warns that while many creatives tend to trust their lawyer to iron out the terms, this is a mistake that can result in them not fully understanding what they are actually agreeing to. That can cause conflict later, especially if the contract is filled with contrived and convoluted language, leading to very different ideas between two parties about what has been agreed.
"Attorneys have a knack for complicating agreements with big words," Danchuk says. "The ideal contract should be written in language that a 13-year-old can understand.
Ultimately, a big part of protecting yourself as a creative from a partnership gone sour is anticipating the worst from the get-go.
"Any contract should take pains to anticipate negative situations," Danchuk says. "You might not want to think about it, but what if the partnership dissolves, or your business goes under, or if you're hit by a bus? Your contract needs to cover these sorts of scenarios."
In those situations, Danchuk says, having a clear agreement on how the intellectual property is to be split is key. "IP is the foundation of most companies. That's what you're going to fight about: either money, or IP, which is what makes the money."
In the case of a creative partnership like Hoefler & Frere-Jones, that means that any agreement between them should have clearly stated how the typefaces owned by the company would be split in the case of a break-up.
It's certainly easy to see how such an agreement would have helped Frere-Jones, who not only created many of the typefaces for which H&FJ is known, but transferred ownership of many of the fonts he had created previously to the Hoefler Type Foundry. The legal tussle between Hoefler and Frere-Jones won't just be over the company's ownership, but its typefaces as well.
Neither Hoefler nor Frere-Jones have responded to requests for comment on the lawsuit, so it's true that, so far, we've only heard Frere-Jones side of the story through court papers. When Hoefler responds in his own filing, the tale he tells may be very different from the one of "profound treachery" that his erstwhile partner has described. Frere-Jones's claims could very well turn out to be baseless.
If Frere-Jones's account is accurate, though, his story is an object lesson for designers. Yes, it's easy to look back in hindsight and speculate on what could have been done differently, especially when you aren't the one in the situation. Even if all the Ts had been crossed on a contract from the get-go, it's impossible to say whether Hoefler and Frere-Jones's fruitful partnership would have fallen apart in the end.
Right now, it appears that the creation of the world's preeminent digital type foundry was predicated upon a leap of faith: that two of the world's most talented type designers could get along together as partners, and that the details would all work out in the end in a partnership where good design would be the only law that counted. That leap of faith might have been predestined to end with a splat, but if they'd taken the right precautions ahead of time, at least Hoefler and Frere-Jones would have known when to pull the ripcord on their parachutes.