What is a theme and what is it not?

I’ve designed WordPress-powered sites and blogs for almost five years now. I have my niche, for which I am grateful. Recently, I came across some huff-and-puff regarding Matt Mullenweg’s decision to remove over 200 themes from the repository, citing non-compliance with the GPL.

I have a feeling I’ve been living under a rock for the better part of three or so years. I’ve watched the WordPress community from the sidelines. I saw its expansion and internecine conflicts. I’ve remained silent on most issues out of being ignorant on so many of them and am not afraid to admit to being so.

However, recent events have raised questions and concerns. Jeff Chandler wrote a thoughtful post on Premium Themes and I am left with a few questions and thoughts of my own.

Allow me to introduce you to my design workflow. Whenever I design for a client my first step is to almost always begin with the WordPress Classic theme’s document structure. Old habits die hard and I have found it to be one of the most efficient ways to start off with a “naked” theme. I strip the CSS file of everything except the theme header, substitute it with a blank template of code of all the elements I use in almost all my designs, and start coloring and shaping. I have never, still do not, and perhaps never will, follow the Photoshop-to-code development workflow. If a client wants something exotic, like a horizontal navigation bar (with tabs!), I have a codebook for that too. Now, I tell my customers that the site I design for them is for use on that project only, or for whatever number of sites we agree upon. The combination of images and CSS code form a look which, I believe, is the intellectual property of either myself or my client (depending on the terms of the contract).

The question, then, is, what part of my design falls under the GPL? Does that mean that any one party can rip off an entire design I make, despite the inevitable embarassment at having me parade their lack of creativity for all to see? It’s so easy for me to reverse-engineer the look and feel of Jeffro 2.0 without looking at source codes for HTML and CSS, but I do not, because it is a professional embarassment to do so. What portion of his, or anyone’s, site can I “liberate?”

What is covered by copyright? I know that blocks of CSS code don’t get that benefit, and for good reason. Faux columns would never have caught on, for example. I don’t think that only the content presented by the blog is covered, though. The look and feel of a site are part of its identity, especially if the design is relatively unique.

What are the limits of the GPL when it comes to Themes, Premium Themes, and Blog Designs? This inquiring mind would like to know.

2 thoughts on “What is a theme and what is it not?”

  1. Jay – came to your site via Meryl Yourish’s site.

    I went through several years of legalities and a lot of law fees to learn the intricacies of U.S.C. 17 and the whole issue of copyright ownership.

    IANAL – but you’re right. The unique look/feel portion of expression is not owned by the platform, but by the designer – the one who fixed the expression/identity. Whether it used common elements or not, the basis for the expression came about from your efforts. The history of this understanding goes way back. For instance, the photographer owns the copyright, though the camera and film makers provide the instruments. Portions of code libraries and APIs are not considered the end portion of a unique expression, any more than the alphabet is when it comes to poetry.

    One cannot freely give away code as a basis for building unique expressions expecting that what is built becomes part of that code expression with a transfer of ownership occurring. If that was the intent, it smacks of “unclean hands”. Copyright must be transferred specifically in writing, and cannot be inferred or implied in blanket license agreements that do not refer directly to that unique expression. Additionally, providing such common code does not cause the unique expression to be fixed – you weren’t hired in any way and the plain understanding is the unique expression is the designers alone.

    I’m not completely familiar with the WP/GPL situation, and do have some concern about it, but it seems the amount of evidence and reasoning to restrict the GPL from encroaching on unique independent designs is safe.

    1. Chris, thank you for your comment. It’s great to know that Meryl remains one of my most influential sources of referral visits. You raise two very important points, first being the provenance of creative work. A camera is the intellectual property of its designers, but the photos it takes belongs to the photographer. Just as blocks of code can’t be copyrighted, a photographic technique can not be considered intellectual property. The product of that technique, the picture, however, is. The creative community has its own ethos and morals about aping someone else’s work, and the embarassment at being called an uncreative, unoriginal copycat is, in many ways, deterrent enough.

      Copyright must be transferred specifically in writing, and cannot be inferred or implied in blanket license agreements that do not refer directly to that unique expression. This is the very reason why the staff at a WalMart photo center or pharmacy photo station with a scanner will tell you that professionally-done portraits are verboten. Staff writers and press stringers, none of whom have bylines, and I think their work falls under the generic work-for-hire contract that they sign.

      The second point that I want to highlight is the encroachment of the GPL upon unique, independent designs. I think the issue that was raised by the WP-GPL thing was that some premium themers were attaching a non-GPL license onto GPL-covered code. The designs themselves were never in question, but it was the “creative use of queries and functions” in these themes. I think that Matt wanted everyone to benefit from these creative uses and open up their use for everyone. He gave the premium themers notice by striking them out of the theme repository. Besides, the true forward-thinkers in this situation have already started to charge for support, which is fine by my book.

      I charge people for my time to perform tweaks and updates on their sites all the time, after an initial maintenance period.

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