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Jeff Chandler

How To Screw Up Your Image

Community member Kim Parsell sent me a notification the other day containing a series of messages exchanged on Twitter between Matt Mullenweg, Chris Pearson, and Brian Clark. I’m not sure how the conversation was initiated considering the post/comment that was linked to was created back at the end of March. At any rate, here is how the conversation on Twitter went down.

@photomatt I think Brian Clark / Chris Pearson of Thesis theme just said they want to sue WordPress. about 1 hour ago from web

@photomatt @bishless Sue, an anti-GPL case. I guess they’re against Open Source enough to sue their underlying platform to prove their interpretation? about 1 hour ago from web in reply to bishless

@photomatt There’s a history of litigiousness? http://blogigs.com/the-thesis-like-theme/ “I release the rest of my internet hounds on your site to shame you into oblivion” about 1 hour ago from web

@wyliemac Whoa. Something is brewing between @photomatt and the thesis guys, @copyblogger and @pearsonified. A GPL issue. about 1 hour ago from web

@wyliemac RT @copyblogger: @photomatt No, we invited you to sue us because you think we are doing something wrong. Intellectual honesty is your friend about 1 hour ago from web

@photomatt :( RT @copyblogger: @photomatt You better watch it Matt. We invited you to sue us to settle the GPL, but libel gets you a new world of hurt. 23 minutes ago from web

Upon checking out the BlogGigs link you’ll find an announcement about a theme Costa created called Thesis Like. Checking out the BlogGigs archive and also seeing the big 300 pixel sized advertisement, it’s clear that this person is a huge fan of the Thesis theme. However, the excitement for Costa was short lived as the first comment on the blog was from Thesis creator Chris Pearson.

First off, everyone take note on what has happened here as this is the way you are NOT supposed to handle a situation like this. Although Costa complied with Chris’s requests, Chris did a great job making himself look like a big, tough, cyberbully. I’d be upset too if someone released a free theme which mimicked my commercial product and on top of that, used my products name but I would have sent an email first. In fact, if you take a look at the business opportunity here, I would have offered some sort of cool license deal or something creative in exchange for Costa to take down his Thesis Like theme. Instead, Costa gets slapped across the face and threatened with the prospect of Internet hounds putting his site into shame. The next day, Costa publishes a public apology to Chris where in the comment section, Chris admits that he may not have handled the situation correctly.

GPL Fight! – Just Kidding:

I really don’t want to go down the GPL road again but it’s pretty clear that Thesis doesn’t give a damn about the GPL license, just like the customers who purchase premium themes not filed under the GPL. They just want a great looking theme which works, is affordable, and has a great support base. If they have to pay a fee to remove an attribution link, seems like customers happily do so with no questions asked.

A part of me would like to create a theme that clones Thesis but has my own php/WordPress code, my own CSS, and a big header image that points a middle finger at the Thesis logo. But I won’t do that and like Matt, I’ll let the market decide what happens to premium theme shops like Thesis.

Now I understand how Matt can get pretty upset when he sees premium theme outlets take full advantage of the free, open-source platform that has allowed them to establish their business while on the flipside, shut out the open-source nature of the platform with their commercial product.

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39 responses to “How To Screw Up Your Image”

  1. I’m a Thesis fan, its my theme framework of choice for development. I’ll put a few thoughts of my own out there:

    1) I don’t mind paying for premium themes/frameworks, GPL or not. Hell I’d pay for WordPress if the paid version got you something that made sense to a business user, like a decent DB/files backup system with some Automattic-supplied storage space that it uploaded to. When something helps me make money, I’ll happily pay for it.

    2) Where do you draw the line with WordPress, the community, and the GPL? Should “WordPress for Dummies” be available for free download in PDF form because WordPress is GPL? (is it? Cause I want a copy ;-) When a client pays for a custom theme/plugin should I also put that on the web for free?

    3) A lot of people think Chris is a huge jerk when they first interact with him or see him in action somewhere. He’s out there, he’s energetic, and he doesn’t pull punches or put on a public persona to appease anyone. But in contrast to that when you’re a Thesis customer (or seriously considering it), you’re in the community, and you’ve got a problem that you need help with, there is no stopping Chris when it comes to helping you out.

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  2. @Paul – Your first point I easily addressed as what is reality. Ask most customers GPL or not and I’m guessing that reason for purchasing a theme is not on their radar.

    Your second point steers me down the GPL highway again. I don’t think the GPL has anything to do with publishing books as its mostly for code. So I draw the line with code. With CSS and Images it’s a pretty fuzzy line but I side with those two things not being able to fall under the GPL.

    I’ve mainly published this post to offer my own opinions on what happened as well as to educate other theme business owners that this is probably not the way to go about handling this situation. It was a mistake out in the open for others to learn from. Because the Thesis theme relies heavily on Chris Pearson as the owner/spokeperson, the way he reacts or handles himself in public reflects back on his company and in this instance, it doesn’t look good at all. In one of his tweets, he mentions intellectual honesty. I’m wondering if this has anything to do with Thesis being Chris Pearson’s intellectual property. If so, what in Thesis do you think could be branded IP? I’m guessing everything that is not WordPress.

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  3. Sure. I think the “intellectual honest” quote was @copyblogger anyway, and on the sidelines of the whole matter I really don’t know what exactly was meant.

    “You catch more flies with honey and vinegar” is probably the motto out of this. If Chris’ second blog comment was written first this particular beef would never have occurred.

    But there seems to be two issues:
    – Chris’ handling of the Thesis-like theme matter (which should be put to bed as being apology accepted)
    – this thing about Matt thinking DIYThemes wants Automattic to sue them to settle the GPL question (you know, not such a bad idea, if the parties won’t go broke doing it. Here in Australia an ISP has basically stepped up to the plate and allowed themselves to be sued by the movie industry to finally get some court rulings over whether ISPs are responsible for policing movie pirating etc).

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  5. Maybe. Maybe Matt knows that as soon as he/Automattic draws a line in the sand on this issue it will fragment the community in a big way, something I think nobody wants.

    Side note on Chris/DIYThemes and the GPL, they have no objection (and seem to actively encourage) creating and distributing child themes based on the Thesis Framework. They may even have no objection to you selling them (not sure if anyone is yet, but I believe some of the more prominent DIYThemes community members are openly working on it and I haven’t seen any objections raised by DIYThemes).

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  6. $87 – $164 for a freaking theme? To me, that would never be a good investment. I’d say that it couldn’t be a good business model, but obviously it works, since Chris Pearson makes enough money to bully no-name bloggers with lawyers.

    That said, I have no problem whatsoever with a theme developer getting paid for a theme. I do, however, think that Chris Pearson’s actions demonstrate boorishness of a level not often seen in the WordPress community. Publicly commenting cease-and-desist threats?Twitter-flaming? Seriously?

    Although you said that you don’t want to re-hash the theme/GPL argument, that’s really what this whole thing boils down to, isn’t it? And ironically, it is my reading of this post (and researching the backstory re: Thesis) that helps me better understand Matt’s position regarding pushing for all themes to be GPL’d.

    It appears to me, though, that Thesis is staking a position that might prove to be untenable to both a GPL fight and to a copyright infringement fight:

    GPL: If Thesis uses any WordPress functions, then the theme would have an extremely difficult time proving that it is not a derivative work of WordPress, and thus subject to the GPL (as opposed to hooks, which IMO are equivalent to API functionality and thus not derivative – though I very well may be wrong).

    Copyright Infringement: I’m not familiar with any successful HTML/CSS/PHP copyright infringement claims (again, I could be wrong) – and this is the primary issue I have with Chris Pearson’s over-the-top bullying of the guy who dared make a clone of Thesis (even one he intended to be inferior, in order to drive more people toward the original). I don’t see any way that he could win such a fight.

    Enlightening reading this morning, for sure…

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  8. @jeffro – It would only be a violate to use the name, if the name is Trademarked. Also, it would be extremely difficult to trademark the common name (Thesis Theme might be possible or at least you would hope).

    Copyright does not include names but works, ideas, and a few other published works. The only part that is copyrighted with Thesis, is the images, styles, and maybe functions that were written by the author.

    GPL is a license, which is inherited in WordPress, so products dependent on the software must also be GPL or the developer is in violation of the GPL. You can get around this by creating your own API and using hooks, which aren’t GPL.

    The issue has always been: A guy creates a theme like Thesis, with similar name. Another guy comes around that owns Thesis and believes, albeit incorrectly, that it is in his rights to stop Thesis like theme from being published. This right here is the problem. With what information I have, no code, or anything has been used from the original Thesis, because if the guy had, then yes, it would be a violation, granted if the original author had written it.

    Well, GPL does take away some of my rights as the copyright author. I can’t pick and choose who gets my software other than by selling it. Also once someone has my GPL code, they can use it as they wish, as long as they do not violate the GPL in the process.

    Now, as the author, I’m allowed to use my code in non-GPL or another license.

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  9. Over and above the GPL-ness of the argument, They way Chris acts is a *huge* turn-off. I know he’s making money hand over fist anyway, but the way he interacts with people in public is a huge HUGE reason I decided to steer clear.

    And I *like* Thesis, I really do. I did have a chance to work on it before, for a client.

    But watching Chris call unhappy customers a “f*cking idiot” and similar mysogynistic comments towards women, makes me steer clear of supporting him.

    This wasn’t a one-off for him.

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  10. @Andrea_R – You have not been the first person to tell me similar stories. The bottom line is, Chris is a huge part of Thesis. What he says and does in the public eye reflects on his company whether he likes it or not. When you make a mistake like he did in public, pretty much bashing the heck out of one of his biggest fans, as a customer, you have to ask yourself if this is the kind of person you want to do business with.

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  11. I have no problem with premium themes. I see them as separate software packages that just happen to hook into a GPL’d platform. It’s like saying that any application that may run on Linux has to be GPL. WordPress is a platform, like an operating system. Other software packages will hook into it, but that shouldn’t dictate that the application be GPL.

    That said, Chris kind of did act like a jerk. I would never try to dispute something like that in public comments. That’s something for email. I think you’re right, too, that he should have given him some sort of license deal in exchange for taking the theme down.

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  12. Jeff, let’s be honest here. Theming isn’t rocket science, rocket science isn’t brain surgery, and brain surgery isn’t cutting edge particle physics.

    I’ve heard of thesis, but not this Chris guy. As the two are related I shall hang my hat even more firmly on the theme choices I have made.

    As to creating your own theme, I don’t think you should. However I do think there a huge scope for creating a project where a selected group of devs can contribute to a single theme to get all the possible features in. Perhaps you could run something like that?

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  13. Ah, GPL – The topic that never dies.

    Jeff, next time you have Matt on your show, please ask him this simple and direct question for the record.

    Matt, do you believe that the images and the style sheets of a WordPress theme fall under the GPL license or could they be licensed as separate works?

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  14. @Andrew – Well, maybe the soon to be renamed Gorilla Theme project will fit the bill and perhaps I’ll participate in that group and see what happens – https://www.wptavern.com/matt-takes-notice-of-gorilla-project

    @Brad – I have asked him this question before. In fact, I’m pretty sure I asked him about child themes as well which are mostly CSS and images. Please see this post and read down until you get to the point where we discuss that aspect of themes and the GPL.

    http://www.wpsnippets.com/2008/12/transcript-of-wordpress-weeklys-interview-with-matt-mullenweg-december-2008-part-2/

    Even though Matt may know the GPL inside and out, it’s hard to say one way or the other because no court cases have gone through to set a precedence on what is and is not GPL compliant.

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  15. Jeff,

    I forgot that was addressed in the other interview, thanks for pointing that out and kudos to wpsnippets.com for providing a transcript. Its pretty clear how Matt feels about that particular aspect. What’s not clear however are the legal issues surrounding it. Perhaps it’s better left that way.

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  16. If Thesis is indeed compliant with the GPL license, then I think now is the time for them to write a blog post explaining how. As Jacob alluded to above, there do seem to be various ways of releasing themes with restrictive licenses which do not violate the GPL.

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  17. I think the whole GPL issue gives us a great yardstick with which to test the intentions of the people we do business with. Bypassing enough of the GPL isn’t really hard, time consuming, but not very difficult. The question is why would you want to avoid it?

    If you want to be part of the community then choose GPL and stick to it. If you want to milk the community from outside then ignore GPL.

    It will never go to court so whether you want to meet it or not is a matter of conscience.

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  18. So now if anyone creates a theme that has a 300 pixel right side banner/photo/video and a left sided content area, Georgia as the main font, using ems and in black and white can get sued by these dimwits {yes, I said it}.

    Oh wait, they have an option to have a left sidebar too!

    This is just a classic case of capitalist wrangling, it’s nowhere even close to being about GPL.

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  19. @Hyder –

    So now if anyone creates a theme that has a 300 pixel right side banner/photo/video and a left sided content area, Georgia as the main font, using ems and in black and white can get sued by these dimwits {yes, I said it}.

    They could try to sue – and I would absolutely love to see them try. They would fail, miserably, and we can put this whole business behind us (well, most of this business).

    While I’m sure that Thesis has a rich set of custom functions that can, and certainly ought, to be copyrighted, the rendered style is another matter. There’s nothing particularly original or unique, and it can be recreated any number of ways.

    And as for the oft-mentioned (and by all accounts, very good) back-end admin UI functionality, I don’t see how the Thesis back-end UI functionality wouldn’t be clearly a derivative work of WordPress.

    (I should also say that I think Matt M. is doing the WordPress community a disservice by taking an all-or-nothing approach to WP.org’s stance on applicability of GPL to themes and plugins. Situations like these prove the point that we as a community need to have an honest conversation with a definitive conclusion regarding this issue.)

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  21. @Paul –

    if they did all that and called it “Thesis-like Theme” then yes I imagine they’d attract the same attention.

    I assume that “Thesis” is trademarked as a theme name. If so, then yes, they would have a valid trademark infringement claim. But that’s all.

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  23. If you are trying to protect valuable intellectual property, you have to police and enforce it otherwise you run the risk of it being diluted (Trademark 101). Perhaps Chris’ methods are a little over the top but if he believes he has valid intellectual property, he has no other choice.

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  25. I still don’t buy-in to the derivative works argument. WordPress is a self-proclaimed “platform.” Linux is a platform, Mac OS X is a platform. Writing an application that runs on Linux doesn’t mean the application has to have a GPL license. Firefox runs on Linux, but that shouldn’t mean it should have to be licensed under the GPL.

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  26. @redwall_hp –

    I still don’t buy-in to the derivative works argument. WordPress is a self-proclaimed “platform.” Linux is a platform, Mac OS X is a platform. Writing an application that runs on Linux doesn’t mean the application has to have a GPL license. Firefox runs on Linux, but that shouldn’t mean it should have to be licensed under the GPL.

    The Linux-Firefox analogy is completely non sequitur, and in no way applies to WordPress and WordPress themes.

    A better example would be Ubuntu and its various derivatives. A non-GPL package can run on either distro, but because Ubuntu is GPLed, so too must any of its derivatives be GPLed.

    Remember the definition of “derivative work”:

    A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

    Firefox isn’t an editorial revision of, annotation to, elaboration upon, or other modification of Linux. Firefox doesn’t depend upon Linux to exist or to run. It clearly isn’t a derivative work of Linux.

    Ubuntu Netbook Remix, on the other hand, clearly is a derivative work of Ubuntu.

    I’m curious how you could argue that a WordPress back-end admin UI interface written for a theme isn’t a derivative work.

    (On the other hand, it seems pretty clear to me that a CSS file, for example, is certainly not a derivative work.)

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  27. @Paul –

    not being a lawyer I have no idea if the absence of a trademark would leave him no legal recourse.

    What, exactly, do you find to be copyright-able about “a theme that has a 300 pixel right side banner/photo/video and a left sided content area, Georgia as the main font, using ems and in black and white”?

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  29. @Paul –

    Fair enough.

    But, if the “Thesis” name isn’t trademarked (for the sake of argument, as I’m sure it must be trademarked), what remains as a cause for a legal suit?

    (Of course, if that “Thesis-like theme” also happened to incorporate the copyright-able content of Thesis, such as its cutsom functions, etc., then that is another matter altogether.)

    I would hazard a guess that the “Thesis-like theme” author could plagiarize the Thesis style sheet 100%, and still survive a legal challenge. I’m not aware of any legal precedent regarding plagiarism of a CSS file (or an HTML file for that matter) – although web plagiarism has been prevalent since the days of HTML 1.0.

    The bigger problem, though, for the potential plaintiff in such a case, is that the same output can be rendered exactly, using an entirely different style sheet.

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  35. If any portion of Thesis is derived from WordPress (WP functions), the whole of it (WP functions + extensions) is GPL because it’s a combined single program.

    And if it’s GPL, then the GPL license is granted from the original (WordPress) and not from Thesis. Now, infringing on CSS, TM and/or images is different, but I don’t think Chris has a case for infringement on code, as the licensed code doesn’t originate with him.

    But it looks like this is a case of style cloning, not code copying. In which case, Chris is a douche, but it has nothing to do with the GPL. Any theme explicitly attempting to copy the “look and feel” of popular news sites or of sites like facebook, twitter or is probably violating copyright if not TM.

    [P.S. You can get protection (copyright, TM, etc.) on “look and feel”. It’s more established and understood in copyright law then anything related to css/html or code. I believe the measure is you can’t make something look so like a competitor as to cause a potential misidentification. Something so generic as a framework though shouldn’t fall under this.]

    I find myself agreeing almost entirely with Chip for a change :), but if the output matches exactly, and the code different, see “look n feel” infringement above.)

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  37. @Jacob Santos –

    products dependent on the software must also be GPL

    GPL covers “derived from” NOT “dependent upon”, which is where this entire mess starts.

    @Chip Bennet –

    The Linux-Firefox analogy is completely non sequitur, and in no way applies to WordPress and WordPress themes.

    A better example would be Ubuntu and its various derivatives. A non-GPL package can run on either distro, but because Ubuntu is GPLed, so too must any of its derivatives be GPLed.

    Firefox isn’t an editorial revision of, annotation to, elaboration upon, or other modification of Linux. Firefox doesn’t depend upon Linux to exist or to run. It clearly isn’t a derivative work of Linux.

    Ubuntu Netbook Remix, on the other hand, clearly is a derivative work of Ubuntu.

    Your analogy here is worse than the Firefox/Linux analogy. Thesis isn’t WordPress re-wrapped and bundled as a separate application, as in the case of a Linux distribution derived from Ubuntu.

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  38. @Ken –

    Function calls aren’t governed under GPL rules, else ALL computer software would run into the statement you made there. All software makes function calls to the software below it, making it dependent on the code, but NOT derivative.

    In the Galoob vs. Nintendo court case, the courts made that point very explicitly clear:

    Some time ago, for example, computer companies began marketing spell-checkers that operate within existing word processors by signalling the writer when a word is misspelled. These applications, as well as countless others, could not be produced and marketed if courts were to conclude that the word processor and spell-checker combination is a derivative work based on the word processor alone.

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