11 Comments


  1. There might be copyright infringement problems when you copy straight off like with the clone themes.
    When it comes to taking css/html here and there I don’t really think its a problem. No piece of css/html is so totally unique as to warrant copyright status. The whole page might have it but not 3,5,8 lines of HTML or CSS. Heck its even possibly that none of the code on the page is unique only the images.
    Its similar to the whole code patent crap. Amazon has a patent for using a cart on their homepage I think.


  2. While the original story cites “Cloned” themes, the specific example, TweetPress, isn’t cloning Twitter per se. As I understand it, the theme is simply calling twitter’s API to go get the specific elements allowed via the API and then build a theme that mimics the user’s twitter page – for use as a WP theme. I think people, including the author, (read the comments – http://www.themelab.com/2010/01/31/wordpress-clone-themes-your-take/#comment-11978 ) Leland, originally missed what the theme was really doing.

    As for the rest of the “cloned” themes mimicing other sites like FB, YT etc – that’s a whole other story. :)


  3. @Kel – That being the case, would that mean that kind of behaviour or use of the API is actually encouraged by Twitter?


  4. @Jeffro – I dunno, I s’pose we’ll find out sooner than later. But for now, it is kindof a neat trick to make my WP powered site match my Twitter page. Time will tell.


  5. Hard legal stance: If you take something from somewhere else and create something new based around that thing, then you have created a “derivative work” and you might be in violation of copyright because of that. Creating derivative works is a right reserved to the original copyright holder.

    Realistic stance: Technical people like ourselves like hard and fast rules. This is valid, this other thing is invalid. There are lines drawn in the sand, and you are one side or the other. Every question has an answer.

    Sadly, this makes us terrible at law. Why? Because the law is not black and white.

    Trying to define any set of hard and fast rules when it comes to legal matters is doomed to ultimate failure, because what is “legal” is really a matter of opinion. And it’s the judge’s opinion that matters. And you don’t know who that judge is in advance. And he may not be fully versed in technical matters. And he might not even believe you when it comes to those technical matters, because somebody else is on the other side of the fence arguing against you, perhaps using what you think are false statements.

    So there is no hard and fast rule for what is copyright infringement or not, and there never will be. All anybody can do is to give you guidelines. All anybody can do is to tell you what their personal opinion is. That opinion may be backed up by precedents, or it may not, but in the end it’s the judge’s opinion that actually matters, if it ever comes to that. And judges can decide any way they like.

    So… is taking a small piece of something and building around it copyright infringement? Technically, yes, if you don’t have permission. But, fair use might come into play, giving you an out. Or nobody might ever notice. Or nobody might ever actually care if the work is different enough. There’s no way to predict the future, and there’s no way to really predict the outcome of a trial on the topic. Safest bet is to make it yourself with your own images and code, or to use freely licensed images and code. And if you want to “steal” a large piece of work to mess around with, get permission first.


  6. The TweetPress creators’ arguments about the API only apply to the background image and color scheme. The rest of the theme has not been addressed.

    The rounded menu in the upper left isn’t from an API call. Neither is the sidebar setup or that little word bubble tip under the logo. And the Twitter logo-knockoff certainly doesn’t come from the API.

    I think using the API in the manner it is used is quite a neat idea, but the rest of the design is the issue here, not the background image and color scheme. It’s not so much inspiration as copying the entire thing.

    Companies like Twitter, The New York Times, CNN, the BBC, Facebook, etc. pay plenty of money for their unique designs. I think it sucks that people make “clone” themes that pretty much mirror the look. Inspiration and “borrowing” are important parts of art, but direct copying isn’t nice…


  7. On the same topic, does anyone have links to prominent websites publicly going after designers or websites using designs that mimic their own as a means of copyright infringement?

  8. Ken

    It’s good to note that while theme code is GPL, the CSS and Images are not necessarily so. Its the exception to the copy-left, and probably the only way to protect “premium” themes (besides using web-services on a 3rd party server, which is more likely in plugins). This means while you can take code (unethical?) from premium themes, you might not (depending on the license) be able to “borrow” the css and graphics.

    The rule of thumb is if a look “feels” enough like the original where a user can confuse the branding, you’ve infringed. Trademarks and copyrights are usually dependent on a market, so using golden arches for a burger joint is a no-no, but for a computer shop called Mac Mechanic, maybe its kool ;-)


  9. @Kel – Yes, I did miss at first that the TweetPress theme does take the background image and colors from your Twitter profile directly through the API. The creator of the theme was quick to correct me on that. I also added an update to the post with that information (with a link to the comment).

    Like redwall_hp said though, a number of other elements present in the theme are not provided by the Twitter API such as the logo (the TweetPress creator hinted he would be removing that in a future version) among other things.


  10. @Leland – Agreed. TweetPress is doing some interesting things (for free too), but it’s probably a bit over the top to mimic EVERY detail of twitter.

    Moving along… what about all the other Clone themes?
    eg,
    * Facebook – http://demos.foxinni.com/
    (I think Justin Tadlock even did a fB inspired theme)
    * WooThemes – Gazette – ala CNN
    * http://www.wpzoom.com/design/15-great-examples-of-cloned-wordpress-themes/

    The bottom line appears to be how _closely_ the theme has borrowed from the original. Pablo Picasso was rumored to have said something like, “Good Artists Borrow, Great Artists Steal” – Of course I think someone else actually said it and he simply “borrowed” it :)


  11. Disclaimer, IANAL and all that BS

    I think that creative types severely underestimate the difficulty in enforcing any sort of infringement, whether direct or inspired. How the clones become clones is a very genuine question. The same issue exists in the art world with regards to copies of famous paintings (often where they look indistinguishable from the original), there’s even an entire set of case law dedicated that issue, and frankly, it can go either way.

    If it’s that difficult to decipher (because as Otto said, this is not a black and white issue). The biggest red flags in almost all cases are any of the branding distinctions. The Twitter logo or font (if it’s a special font and you are using it without a license), the Facebook logo, sometimes even certain colors can all be way too close for comfort. When it comes to actual layouts, however, assuming the CSS isn’t just a straight copy, I think that trying to get someone to take down a website because it shares the same layout pattern would be pretty difficult. Especially since most sites do employ many of the same characteristics thanks to stuff like 960.gs and other CSS frameworks.

    And of course, you can’t talk about one side of the issue without talking about the other. While I think we all agree that people that create and sell rip-off designs (and I’m talking verbatim copies, not inspired by stuff) totally suck and should be shamed, if you take protection too far, it can get flat out stupid. True story as a counter-example: T-Mobile (division of Deutsche Telekom) sent Engadget Mobile a cease and desist notice in 2008 regarding the use of the color magenta in the Engadget Mobile logo. Nevermind that this logo had been around for a long time or that it was s different hex count than T-Mo’s magenta, they said, “we are the only telecom related website that can use magenta, period.” Weblogs Inc. went Magenta network-wide the next day to show support. Nothing ever came of the complaint and then T-Mo jumped on Samsung or Motorola or someone else who dared use magenta. Again, with typical unsuccessful results.

    So on the one hand, totally derivative designs are problematic to do and have lots of potential (though realistically unenforceable unless they are taking your creative assets like images or trademarks), on the other, if you go too far down the rabbit hole stuff can get just stupid.

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