In our design piracy series we recently examined the following text found in the terms of service for various 37signals products:
The look and feel of the Service is copyright©1999-2007 37signals, LLC. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without express written permission from 37signals.
We've discussed this and the fact that you can not copyright look and feel. Unfortunately today my attention was drawn to one of my favorite new apps, GitHub.
I've used GitHub, and it's great... but today someone pointed me to the following excerpt from the GitHub Terms of Service (emphasis mine):
The look and feel of the Service is copyright©2008 Logical Awesome LLC. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without express written permission from Logical Awesome.
Seriously, guys? Almost everyone I've spoken with is decidedly against the spin 37signals is trying to put on copyright law... and here we have a well-known [or well on it's way] service with strong OSS ties following in their lead... Is this intentional? Someone please tell me it isn't.
I then decided to Google "look and feel of the service is copyright" and found an alarming 376 results.
Is this a case of simple borrowing from the 37signals Terms of Service word for word, or is there a more generic legal template that ALL these sites are using for their ToS? I spot checked maybe 10 of the search results at random and the "look and feel" clause was exactly the same, word for word.
In fact, the entire terms of service in several cases appear to be mostly the same with the only noticeable difference being the name of the service in question. (probably a lot more than "several", but who wants to read 376 ToS documents...? Not I.)
Anyone have any light to shed on this? I think it's a disturbing trend to find the "look and feel copyright" myth propagated (knowingly or unknowingly) by so many web apps.
Update: I actually just noticed one small difference... the the Highrise ToS actually specifically mentions "design elements or concepts"... the "or concepts" not being found in a lot of our original results (also not found in the Backpack or Campfire ToS)... so lets Google the latter part of the phrase: "visual design elements or concepts without express written permission"... 66 total results.
Update #2: I received confirmation that the GitHub ToS was indeed inspired by 37signals (one down, 375 to go). It was also suggested that I e-mail a member of the GitHub team with concerns regarding the ToS. Those concerns could then be raised when their terms of service are reviewed by a lawyer in the near future. E-mail sent. I hope it makes a difference.
From the close of my e-mail (and this goes out to those other 375 sites as well):
I hope GitHub isn't the kind of place that would mindlessly absorb another companies point of view on a much disputed issue without thinking it through for themselves. A few small changes could remove this bias completely from your Terms of Service. I think it's in everyone's best interest that an application's terms of service stick to defining terms of service and do not attempt to add to, modify, or misrepresent copyright law.
Idle thought of the day: I wonder if any of those remaining 375 companies are actually using a 37signals inspired ToS (including: "look and feel of the service is copyright") to protect a 37signals inspired "look and feel"? :-)
The "or concepts" is even worse because then we're talking patents and not just copyright.
Posted by: Dag | June 06, 2008 at 11:16 PM
I remember asking 37signals for permission to use some of their javascript on Voxxit Hosting's web hosting plan page. Jason was pretty stern in his statement:
"Hi Joshua-
Thanks for getting in touch.
Our Javascript on our marketing site is not public domain, sorry.
Thanks for asking permission, but we can't grant permission.
-Jason"
So, I took the general concept, and created it myself using jQuery and CSS. They really shouldn't be surprised that their "concepts" will be copied. They create great UIs! Half of the RoR apps out there use their concepts. How can they possibly keep track?
Posted by: Josh Delsman | June 06, 2008 at 11:18 PM
"Half of the RoR apps out there use their concepts"
And perhaps a lot of apps out there using their terms of service as well... :-) Unless they got it from another source as well...
Posted by: Josh Goebel | June 06, 2008 at 11:26 PM
I'm no lawyer, but I'd chalk this up to defensive posturing. Lots of companies make ridiculous intellectual property claims (legal statements at the end of emails, for instance). It's not because they have a leg to stand on. It's simply to ward off evil spirits that might poach content and would be scared by such threats.
Can you copyright a design? Sure. Is it going to be easy to defend? Not likely. So where does "look and feel" fit? How about HTML or CSS? It's something of a moot point because ultimately, it's not an easy case to make and the costs outweigh the benefits.
Posted by: Chas Grundy | June 06, 2008 at 11:41 PM
I understand the "defensive posturing" argument, but 37signals says on their own blog they e-mail someone "stealing" their look at feel "roughly once each week"... that is a pretty big deal if they are totally misrepresenting copyright law - which is my view after reading and discussing the facts here on my blog.
It's one thing to make ridiculous claims, but another to follow them up with one e-mail every week (to various "rip offs") and then threaten (or pursue) legal action (they say 1% of the time) if your e-mails fail to have the desired effect.
Posted by: Josh Goebel | June 06, 2008 at 11:54 PM
An interesting tangent to this is to review the landmark Fox Software / Ashton-Tate lawsuit from the late 1980s. In summary, Ashton-Tate sued Fox Software for "look and feel" infringement. In this case, it led to the realization that even Ashton-Tate didn't "own" theirs because they derived it from somewhere else (JPL) originally.
Posted by: Jay Shepherd | June 09, 2008 at 10:56 AM
You can't copyright look and feel. You can't copyright essence, nuance or style. We designed shoes that were knocked off perfectly by Banana Republic, Steve Madden, and Tusubo. Did we wine about it. Nope. We just knew we had something special. If they don't emulate you then you should be concerned. It means it is not working. If they are then you have to lead them like Apple does. if you cry out "Stop coping me." It is like saying uncle. Your audience will even turn on you. It is time to toughen up butter-cup and show us what you are really made of when you have fierce competition biting at your heels.
Posted by: Kevin Milden | June 11, 2008 at 03:32 AM
Well, Coca-Cola have trademarked their bottle design, and ANZ have trademarked their blue colour.
I don't think you can copyright "look and feel", however I believe you can and should trademark "look and feel" elements distinctive to your business, i.e the iPod click wheel
Posted by: Bryce | June 13, 2008 at 02:15 AM
I also think look and feel may be patentable... and we never really discussed trademarks in this series. I kind of skipped over them because in everything I've read 37signals is resting their case on copyright... not patents or trademarks.
I don't know what I think about someone trademarking a color though. Sounds ridiculous to me.
Posted by: Josh Goebel | June 13, 2008 at 02:36 AM