Sheet of Paper Design - Can it be copyrighted?- Design Piracy Series

In our last post we talked about sheet of paper design, what it is, what it looks like, and why people like it.

We left an unanswered question that I'd like to address now... Does 37signals have a copyright on sheet of paper design? Of course we know the answer is either a 2, 3, or 5 letter word... but that wouldn't make much a blog post, now would it? :-)

The Essence

When I want to start a new sheet of paper design here is what I usually start with:

It's pretty simple. Of course there is a certain proportion to it. Be it 66/33 or 60/40 or 70/30... I don't think it matters and I don't think there is a "golden" number. I have no idea the exact proportion 37signals uses. I tend to use what feels right over time. Pastie, for example, has a wider content area because the entire app is driven by one purpose: just pasting and viewing code.

So in review we have a white box in the middle of a grey background roughly proportioned to 2/3 the total width, that's it. A one or two element layout (depending how you count the background).

Can 37signals really copyright such a simple design? I find the very idea ridiculous - and I'm not alone. If 37signals can copyright that then we're screwed. So is every one of the sites I mention and actually most of the internet if such a simple design can be legally protected by one company exclusively.

But maybe they are trying to claim copyright on a bit more than sheet of paper design itself, so lets continue...

Adding a header

Let's pair any one of the tabbed headers from our previous discussion with this simple one element sheet of paper design... Let's remember we still haven't added any actual content or even any sidebar content that would differentiate our app from another other web app... nada... we just have a white box, a grey background, and a tabbed header design...

Hold up, lets not even pair it with one of those tab heavy headers. Lets pair it with a simple black header with links (think Pastie or Beast):

So what do we have below? We have something that surely bares a resemblance to a 37signals web app. We now have 2 or 3 design elements on the page. Can we copyright it yet?

Placing the content...

I'm not sure it really matters what you put in the white or grey areas at this point... maybe 37signals would be a little less upset if we put a picture of Mickey Mouse in the white and Miney Mouse in the grey... but if you continue to use a clean, simple design there are going to be similarities to 37signals... The sheet of paper layout itself (for better or worse) combined with well-known usability guidelines constrains your choices about the placement of content, help, utility links and buttons...

Sometimes you're forced to make the same design choices as 37signals. Yes, forced. Let me just give some examples to illustrate this.

Page title

It's important. Where do we place it? What about top center of the content area (old Basecamp), or top left (new Highrise).. what about top sidebar (Campfire)... Fuck, I can't even put the title on the page without "stealing" from a 37signals design.

Page subtitle, if we have one

It should probably go near the title... perhaps under it (Highrise)... or beside it.. (Basecamp header) Thwarted again.

Links or buttons to alter content (edit, delete)

Well, they should probably be near the title of the content... right beside it (old Backpack todo edit links), top right of content area (Highrise), above it, beneath it (old Basecamp I think), top sidebar, bottom of content (Basecamp Messages, expanded view)... top sidebar is a bit awkward to me, but I'm trying to think hard here.

I suppose I could hide the delete button unless someone is editing the content (old Basecamp)... or not (new Basecamp). Can't win.

Primary content and help/peripheral content

I think this is pretty obvious. Primary content on the left (the wide page area), peripheral content on the right... this is pretty standard with two column designs. Maybe we could put the sidebar on the left (old Basecamp projects list)... Nah, bad idea.

Links or buttons to add new content or perform other key tasks

We're talking about the key task on a page (if any)... Like "Add a new pet" on the page that lists pets... We could put the links under the title (old Basecamp project overview), to the right of the title (new Basecamp), maybe at the top of the sidebar (Highrise), maybe even above the title, though that's a bit weird. I could use a link (new Basecamp, project overview) or I could use a button (Highrise, new Basecamp, etc)...

And what if my button reads like a sentence "Add a new pet"... where have I seen that before... hint: Apple's own software and Human Interface Guidelines.

Starting to see a pattern yet?

Usability Guidelines, Basic Design Principals and Common Sense

When you start with a sheet of paper design 37signals seems to think everything that follows results from your ulterior motive to steal their design. They are flat out wrong. The sheet of paper layout itself, usability, basic design principals and common sense guide a good designer, just like they guided 37signals.

Take someone with some common sense, mix in a good knowledge of usability and some experience with design and the web in general... and you will find a person making a lot of the same decisions regarding placement, proportion, contrast, etc that 37signals has made.

Sure you can go the Lighthouse route (no offense intended)... add more color, more boxes, more curves, more "fun"... do extra things to try and look less like 37signals (build a thermos instead of a cup). But if you just love that clean, simple look, there isn't a lot you can do.

So, does 37signals have a copyright on sheet of paper design...

.. and do they have a copyright on the basic decisions, placements and proportions that follow from it... in other words, does 37signals have a copyright on usability guidelines, basic design principals and common sense?

God, I hope not.

Tune in next time and we'll talk about copyright law itself, patents, and more...

Comments

[Rick]

Good stuff. I'll be interested to read your next post, since the crux of the matter is "what does copyright allow you to protect?" vs. "what can be protected by a design patent?"

Judging by the fact that Jason apparently has neither a lawyer nor a spell-checker, I'm guessing they don't have any design patents either, which, while they could be moderately useful in cases like these, are unfortunately also the the weakest patents and the hardest to enforce).

In that case, unless someone lifts the actual markup and CSS from a 37s site for reuse, which is not the case in any of the examples you've given, best I can tell, the lack of a design patent pretty much leaves 37s up the proverbial creek legally.

Certainly, people should do their own work, be original, express their creativity. But to pretend that what is now de jour and also obvious (as you're showing) might be considered groundbreakingly original is farcical. To the extent that 37s is successful with design and influential, they should be flattered. To pretend that they are the progenitors of all that they are similar to is just old-fashioned arrogance.

Best,
Rick

[Josh Goebel]

Jason and I don't see eye to eye on everything (as this series surely shows) but that spelling comment was a low blow. We all have our bad days... :-) I do admit I too am a little curious where his spell checker was that day though.

In everything I've ever seen or read from Jason he's always referring to "copyright", not patents... I agree if 37signals had design patents that would make this a more interesting discussion. I'm only planning on delving into patents in my next post because I think (as you say) we may find they are more relevant to this discussion than copyright. Perhaps someone other than myself is curious what the difference is as well.

Well, I didn't spot check the HTML and CSS of every app I've mentioned or anything... I can only vouch that the one's I've been involved with are not stealing markup and CSS from 37signals. I agree though - people should not be using someone else's HTML and CSS raw without permission. That is stealing under copyright as I'm familiar with it.

Thanks for your comment, Rick.

[brough]

It would be tough to assert copyright over a css layout, especially one that basically conforms to a popular design pattern, as it needs to be an original creative work to be entitled to copyright protection. A few ems here and there wouldn't cut it. More importantly, this css file would need to be formally registered with the library of congress within 3 months of a public beta/publication for the 'author' to be entitled to statutory damages and attorney fees. 100K+ statutory damages has teeth. Actual damages and profits, their only recourse unless they were sad enough to register a css layout, is probably worthless at best, and at worst, improvable.

Anyway I have an awesome css sheet of paper tiger design to finish.... oh. dammit.

[brough]

ps that would be 'profits' directly derived from the infringement, iirc. pretty meaningless in this context.

[Josh Goebel]

"It would be tough to assert copyright over a css layout, especially one that basically conforms to a popular design pattern"

Especially since there really are only so many [correct and valid] ways to do something like style sheets. But I'm not making that argument... I'm sticking to talking about design alone. I may touch on HTML/CSS in my article on theft just to make my thoughts on that clear... but this entire discussion is definitely about similar designs, not similar HTML or CSS...

[brough]

you'd need to copyright the source code (be it the html or css or a combo) to assert a copyright claim over the UI/'design' -- which is a product of the css/html source code. I couldn't say absolutely, but I'm pretty certain that you can not copyright a drawing or photograph of the browser's rendition of this code (which obviously varies from browser to browser, in any case) and use it to protect your design concept. It really cuts to the heart of the whole argument -- obviously the other side has a very airy-fairy view of what 'copyright' subsists in (though I agree the design itself is patentable in theory -- that would have nothing to do with the underlying source code).

[Tomas]

Just a PS to this whole discussion: going the "Lighthouse" route only makes it look more like Apple's stuff — which, just like 37signals' — has been very influential but it would just be ridiculous for them to claim ownership of it (which, as far as I know, they do not).

[Josh Goebel]

I'd actually say Lighthouse looks more like some of the webish stuff Microsoft was doing around the time of Windows 2000... but I really can't put my finger on any individual styles or elements, so it could just be me.