To Web developers, code is poetry and design is art. They spend countless hours hammering out attractive, functional and effective designs. They edit images, layout pages, write code and produce body copy with the same skill and craftsmanship as many artists, authors and musicians do.
However, as many designers have found out, their craft is just as vulnerable to plagiarism as the arts that they relate with. However, unlike plagiarism of most other kinds of work, the law is much less clear on what is and is not protected, thus limiting the amount of protection a designer receives for their work.
Worse still, many of those who are victimized are hesitant to speak out, fearing that their own acts of copying might earn them the label of "hypocrite". Others, sadly, see it as just par for the course when building Web sites.
But while the moral fine line between inspiration and plagiarism is, and always will be, heavily debated, the law is significantly more solid. While it may not provide Web developers with all of the protections they want, it does provide them with significantly more than many think they have.
What the Law Says
One of the cornerstones in United States copyright law is that it protects the expression of an idea, not the idea itself. This is an important distinction because, in the U.S., a design is considered an idea and is not directly copyright-able. U.S. law only protects things that are fixed into a permanent medium, A design, though it can be represented in a drawing or picture, can not itself be fixated.
Other countries do not share this limitation. Many nations in Europe, for example, allow one to copyright a design including shapes, patterns and other things that, in the U.S., fall under trademark and/or patent law. Sadly, since trademarks and patents are neither free, instant or, in most cases of Web plagiarism, applicable, they are virtually useless to the common Web developer.
However, when one looks at what makes up the intangible design, they see a collection of tangible objects. Every Web design, at the very least, is comprised of some code. That code, which is saved into a file on a server, is copyright-able. Also, the images and text used to populate the layout are also copyright-able as they too are saved into files on a Web server.
This is a very similar distinction that writers run into, especially with fan fiction works. While J.K. Rowling might be upset if someone else created a series of books about a wizard school and a young boy with a destiny, so long as the author didn't use any actual copy or characters from Harry Potter, it is unlikely that Ms. Rowling could stop them. However, once it was clear that some material was reused, the case would be very different.
The end result is that, while the design itself may not enjoy copyright protection, the parts that make it up, and thus the work that went into creating it, is clearly protected. This creates a strange paradox where a site that looks precisely like its inspiration might not be infringing at all while another page, one with almost no immediate resemblance, might be if it reused code or images from its predecessor.
While Web developers balk at having their creativity lifted, it should be some small consolation that anyone wishing to stand on their shoulders will have to first rebuild everything from the ground up. Though this permits someone to take a great idea, it eliminates most of the shortcuts to success.
What it Means
Most Web developers, including those that are disgusted by plagiarism, will admit to surfing around the Web for inspiration. They will also admit to taking good ideas that they see and reusing them on their own sites. This has caused many to worry that they are guilty of the same misdeeds as blatant thieves.
Legally speaking, that is simply not the case. As long as the code was created from scratch or reused with permission, inspiration and even imitation are legal (Note: This does not take into account software patents, which are very unlikely to apply in most Web development matters.) Also, most find there to be a great moral distinction between people that steal a layout and those who are merely inspired by it.
On the other hand, it means that designers who take their inspiration to the extreme, mimicking a site down to the tiniest elements, are free to do so as long as they do not copy any of the actual code, images or other elements. Though they might upset fellow designers and receive angry letters from the original creator, legally, there is very little that can be done.
It seems as if the knife cuts both ways, protecting both legitimate inspiration and outright plagiarism. However. That is not the case. Odds are, if someone flagrantly rips off a site they will also take some of the code or images that make it up. If one is willing to put forth the effort to create an entire site from the ground up, they will likely also take the time make it more their own.
Plagiarists that lift elements of a Web layout can be handled the same way any other kind of plagiarist is handled, through cease and desist letters as well as DMCA notices and other kinds of host contacts. However, one must make sure of two things before moving forward.
Second, one has to be sure that the code or images that were lifted can be copyrighted. Extremely short pieces of code that could have been independently created can not be copyrighted. Neither can Internet standards nor other situations where there is only one set way to do things. In short, if the code easily could have been produced independently or could not have been done another way, there is no protection.
While these limitations are nothing new to writers, artists and others who are used to dealing with copyright issues, to a Web developer facing a mirror image of their own site, they can be frustrating to deal with. If a plagiarist has gone a long way to hide their theft, it can be hard to pull out any actual copyright infringements. In fact, with a great deal of effort, a plagiarist may not be able to hide his inspiration, but he might be able to avoid any legal trouble.
Steps to Prevent Design Plagiarism
While the idea of a plagiarist stealing one's hard work is always frustrating, it comes with many new headaches for Web developers. Fortunately, there are several steps that any Web developer can take to prevent, prove and stop content theft.
- Consider Encrypting Your HTML: While HTML encryption
- Make Your Code Your Own: Every writer has a unique writing style, every musician has a distinct playing style and every artist has a distinct painting style. Thus, every Web designer needs to have a unique coding style. Assign names and classes according to your own unique style, use comments liberally (something most designers, myself included, are guilty of not doing) and develop your own ways of doing things. That makes it easier to pick out any infringements and makes it harder for a plagiarist to modify a work to avoid trouble.
- Embed Your Images: Take advantage of the hidden metadata in images to embed your copyright information. Though you can't copyright that 1×1 transparent gif/png that you use in formatting, most larger will enjoy some form of copyright protection so long as there is some expression. In short, embed your copyright data into your logo, your background and other images which should be unique to your site (Note: I need to do this as well).
- Use Unique File Names: While many plagiarists will change the file names, having unique ones can make it easy not only to prove infringement, but also to detect it. Unique file names, especially in regards to images, can be searched for in Google and other search engines that have the ability to look for image files.
- Search For Plagiarists: There are various ways to search for stolen layouts, none of them very effective. File names of various images might show up in an image search, embedded strings in HTML code might show up on a regular Internet search, but the best way is to constantly be keeping up on new sites in your field. Since most templates work best for a specific genre, keeping up in that particular field might be one of the best ways to detect design theft.
- Use a Content Management System: Using a content management system (CMS) is not only a great way to maintain your site, but it also separates your template from your HTML. Though a potential thief can easily swipe the HTML page that the CMS produces, converting it into a usable site is much trickier.
- Join a Forum: There are several forums and communities on the Web dedicated to dealing with design theft. One that I personally recommend is Pirated Sites. These communities are great places not only to learn more about Web page design, but get tips and tricks for dealing with these cases. Best of all, they can provide support in cases where the plagiarist has clearly crossed the line of ethical behavior, but may not be illegal. Sometimes simply having a place to point out the similarities is all you need to resolve these matters.
For those looking to borrow ideas and material from another site when building or redoing yours, here are a few suggestions:
- Ask First or Recreate On Your Own: If you see a template or feature on a site that you feel you have to have, the easiest way to use it to ask. If you ask first and offer credit in your new template, most Webmasters are happy to help. If you can't get permission for some reason but still wish to use it, recreate it without using any original code or images. You can use your eyes to recreate an effect, but any direct copying is not allowed.
- Never Settle on One Way: Finally, always remember that there is never just one way to do something. Try using another language or looking into a similar idea that fills the same purpose. Be inventive and, if you can't use something legally, look into alternatives. This type of work has led many to some great expressions of creativity.
All in all, there is little reason that anyone should have to illegally use someone else's copyrighted code just to get a desired layout or effect. Between open-licensed code, alternative methods and simple permission, anyone can get the desired site if they are willing to put forth the effort.
On the other side of the coin, no Webmaster should have to put up with their hard work being ripped off, be it text, image, audio or code. The same rights protect all four and Webmasters should not have to sacrifice them just so that people can take shortcuts on the way to greatness.
Because, while sharing can be wonderful, theft only cheapens the experience for everyone.