CSS: Copyrightable?

December 18, 2003 1PM PST

Yesterday’s post began with a soliloquy on the relative ease of theft that comes along with standards-based design. This is an issue I’m deeply concerned about, for obvious reasons. I’ve had to tackle some hard questions head on when it comes to CSS theft. I still don’t have any answers, only opinions.

Some excellent discussion ensued on both topics yesterday, but there was some confusion between them. Let’s free this topic from the specific case, and move along to the more general issue at hand.

CSS is a design language. It’s the foundation of a site layout, just as much as PostScript is the foundation of a poster or brochure. Can the code itself be copyrighted?

Views expressed yesterday covered the whole spectrum. Here are some of the more interesting thoughts:

“I’d bet there haven’t been many lawsuits about this yet, and once they start happening at least we’ll have the precedents set by music sampling and remixing to go off. It’ll be tricky to define exactly in what sense one owns a design and its code. After all, there are lots of 2-column, main content + sidebar pages out there, but each designer should be able to say that they own their particular implementation.” §

“A layout has no visible parts. It’s just how you use the space in the window. If I build a layout with a two-column header, a three-column content area and a two-column footer then there’s no way for me to tell someone else that they can’t do the same thing.” §

“It’s an analogy that’s been used before, but CSS is nothing more than the ‘grammar’ of web design.” §

“Of course you can’t copyright one <h1> selector, or one <p> selector… in music, I can’t really copyright a G or an A, or even a C Major chord… (though John Cage’s estate insists that all silence is under his copyright)

“It is the combinatory effect of notes that make music, words that make poetry, selectors that make CSS.” §

“…to raise CSS implementations from tech grammar to a copywritable collection of language will require a test in court to recognize it as such.” §

And I’m just going to quote this next one in its entirety, since I find it brilliantly well-reasoned. Thanks Raena!

I took a photo of a sculpture in the city once. I didn’t make my camera, the sculpture I photographed, the film in the camera, or the paper it was printed on. I didn’t come up with the theories behind use of light or composition. Other photographers use all those same tools all the time. There have to be thousands if not millions of photographs of sculptures, and undoubtedly there are plenty of other photographs of that very same sculpture.

Yet I have every right to copyright that photograph.

You say that a CSS file lacks originality in the sense that CSS and XHTML are the ‘grammar’ for a Web design and everyone else can use the same tools. What you’re ignoring is that it is the whole, the end product, that is original work. Thought has been put into the composition of the CSS file, even though the designer doesn’t happen to be the inventor of the CSS spec.

“You can copyright a slogan, but not the sentence structure or the words that go to make it up.”

Actually, you can’t generally copyright a slogan, just as you cannot copyright a title, name, or short phrase: it’s too small. You can protect your slogan with a trademark if it’s connected to a product or a service, but there is a minimum amount of authorship.

In most cases, copyright cannot be placed on something without sufficient originality. What cannot be copyrighted:

  • anything that isn’t fixed (ie written, saved to disk, recorded)
  • an idea, procedure, process, system, method of operation, concept, principle, or discovery (that’s what patents are for)
  • “useful articles” (objects with a utilitarian purpose and, interestingly, clothing)
  • small works, like a really short phrase or a few words
  • a compilation of works, unless some original thought was put into the arrangement (no to the phone book, yes to World’s Greatest Beer-Drinking Songs)
  • it cannot simply be a mechanical reproduction of something (I can’t copyright that Chemical Brothers CD I just burned).

All else is deemed to have sufficient originality to be considered copyrightable. I’m not convinced that a CSS file with the complexity of the Fleshbot spec doesn’t count. It is an expression, done in a particular way to create a particular result, even if that result is similar to other works.

“Let’s face it — a CSS file is an hour or two and a text-editor.”

Bzzt, wrong answer. That photo I mentioned earlier was a thirty second snap-decision to go stand someplace, squint through a little window and press a button. How much effort is required for original work to deserve protection? Three hours? Twelve? Ten minutes, but only if it’s really really really hard?

In US caselaw, the ‘sweat of the brow’ argument was rejected several years ago in Feist Publications v Rural Telephone Co. As well as pointing out that a phone book isn’t creative or original enough to constitute a copyrightable work, the 6th Circuit ruled that the amount of effort one puts into creating something has no bearing on the originality of the end result.

“Well, in that case i think it might apply to cases in which CSS is used in unusual, innovative, original ways…”

So it’s only the unusual, innovative, original, oh-my-god type stuff that deserves protection by copyright? Oh-oh, there goes the protection for about half of today’s pop music.

A work doesn’t have to be any good to be protected by copyright. It just needs to have an element of original authorship.

But what about you, Dave Shea? What do you think?

The community surrounding web standards and CSS particularily thrives on sharing. I can easily pick apart the latest Jon Hicks or Dan Rubin masterpiece, figure out how they produced those amazingly tight layouts, and learn from their trial, error, and experience. Would I ever try to duplicate one? Hell no.

A layout is an element of the overall design. Obviously two people can arrive at two very similar layouts independently. A couple of 18px #FFCC00 headers aren’t going to cause anyone’s eyes to blink. But there are cues that a layout has borrowed more than it should — recognize any of these, for example? You can run through a laundry list of reasons why you do, even though they have been changed dramatically. (I’ll give you a hint: 1, 2, 3, 4)

There really is no legal precedent at this point to say what’s right and what’s wrong when it comes to web design. CSS files are low-hanging fruit; they are out there for public consumption, they’re easy to use. Does that make it right to use them? You know the answer to that.

I’m all for the spirit of sharing, within limits. One who chooses to use another’s work should always grant the original creator the respect they deserve, be it monetary, or just simply ensuring they have authorization to use the work in the way they wish. If you ask me nicely, you might just be amazed at how kind I can be.

That’s the way I believe the world should work. Pity that it doesn’t.