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May 21, 2008

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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.

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