Copyright, Trademark and Blog Design

Filed as Guides on May 27, 2011 2:50 pm

Automattic LogoAlmost every blogger knows that blog design is important when trying to build a successful site. How your site looks and feels not only sets the tone for your blog, but it also is a big part of what separates it from similar sites and gives it an identity of its own.

However, just as with the content and the domain name of your site, there are ethical and legal issues that come with the theme of your site. Specifically, both trademark and copyright law protect or may protect the theme you’re using right now. But unlike the content that fills your pages, most bloggers don’t create their own theme, at least not from scratch, putting them in the position of using someone else’s work on their site.

That being said, the ways in which copyright and trademark impact Web design is not nearly as simple and as straightforward as with other types of content due to how the laws overlap and what they don’t protect.

So, if you either want to protect your blog’s design or make sure that you’re on the right side of the law with your blog’s theme, here is what you need to know about copyright, trademark and blog design.

Copyright and Blog Design

Copyright, under the law, protects all “original works of authorship fixed in any tangible medium of expression”. This idea of fixing the work into a tangible medium is crucial because copyright law explicitly does not protect ideas and concepts.

This is important because much of what we think of as Web design is actually an idea or concept. For example, the idea to use a three column layout with a red background and a black logo is is just an idea that can’t be protected by copyright law on its own (not to mention that it almost certainly isn’t original enough).

That being said, there are many elements of Web design that are protected by copyright. For example, copyright law protects both software code and images, meaning that the code used to build the site, (HTML, CSS and PHP) are protected under the law as are the images (backgrounds, logos, etc.)

This, in turn, creates a strange situation where you can actually use the design of another site without fear of being a copyright infringer, so long as you don’t use any of the code or images that built it.

However, few bloggers actually code their own themes from scratch. Both the time and knowledge required to do it simply being too great. As a result, most blog themes are actually built upon existing themes, usually those that are freely available, and that can actually open up a completely different set of copyright questions.

The GPL and Your Themes

Many may remember the dispute from a few years ago that pitted Automattic’s Matt Mullenweg against Chris Pearson, the designer of Thesis. The spat started after Chris Pearson claimed that his theme, Thesis, was not a derivative of WordPress, the system it was designed for, and did not need to be GPL licensed. Mullenweg disagreed. After a public war of wards, Pearson eventually backed down and agreed to license his theme under the GPL. However, not before the issue of themes, the GPL and blogging was in everyone’s consciousness.

The issue was controversial, especially among professional theme developers, because, while the GPL does not prevent people from being able to sell something their code, it gives users the freedom to copy it and make modification of it so long as they use the same license when they distribute it.

The general consensus (though it hasn’t been tested in court yet) is that the core theme files are a derivative of the platform they were built for as they use code from that platform to work. So, if the platform is licensed under the GPL, as with WordPress, those files are as well. However, images, CSS files and JavaScript files that are often included with the theme don’t have any derivative code in them and may be licensed under a different set of terms.

In short, if you want a theme that you can modify and copy freely, you most likely want to find a theme that is fully licensed under the GPL, such as the ones in the official WordPress Theme Gallery.

Trademark and Blog Design

Finally, it’s worth noting that a site’s design if often a key part of a business’ identity. As such, it may be possible that design could be protected by trademark. For example, if a company is well known for a particular site design and you mimic it so closely, even without copying any code or images, that it might cause others to confuse your site for theirs.

However, given the limited number of layouts, colors, etc. as well as the number of sites that use the same or similar elements without any confusion, this would be an almost impossible bar to reach, especially without already infringing on one’s copyright.

Still, it’s worth noting that you may be able to make your site look enough like another site, in particular one owned by a business, to cause confusion in the marketplace and possibly violate trademark. Though this is more of a theoretical exercise, especially since most companies don’t register or enforce the potential trademark on their site design, it’s worth being aware of when you try to find sites to emulate, especially if you’re emulating a site that you’re competing against.

Besides, if you made your site so close to another’s layout that it caused confusion, it would likely cause more damage to you than them by making you seem like a rip off and a clone.

Bottom Line

All in all, Web and blog design is a very interesting area of intellectual property law. Not only is it an interesting mashup of copyright, trademark and unprotectable elements, but it’s also a largely untested area of law. With the Web itself only being of any importance for the past 15 years or so, there have been very few lawsuits or rulings on Web design related issues.

Still, it is important to at least be aware of the issues that surround copyright and trademark in this area. Since every site needs a theme and most bloggers don’t have the time or knowledge to make one from scratch, knowing what the law does say can help keep you out of trouble down the road.

Fortunately, it isn’t nearly as complicated as some make it out to be, especially if you get your themes from solid sources and use them in the desired manner.

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for The Blog Herald. This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.

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