Clarification of WordPress theme GPL issues for designers and developers.
There has been an unfortunate misunderstanding in the WordPress community surrounding the GPL and theme and/or design licensing. I seek to clarify these questions because I see them a lot, but the answers are not usually complete.
The Background
There are two things that make WordPress themes valuable:
- custom design which when used with WordPress consists of images+CSS
- custom code that enhances or extends functionality of the theme (ex: theme options)
The Questions
There are two questions that surface consistently in blogs by current or aspiring theme designers/developers:
- What about my custom design? Does it have to be GPL?
- Can someone force me to distribute my theme?
Finally, there are two reasons that a current or aspiring theme designer/developer asks these questions:
- They preform custom work for hire for their clients.
- They want to sell premium themes.
That second reason has recieved a lot of harsh judgment from the WordPress community and that first reason has not been addressed almost at all.
The problem
While some people think it is unsportsmanlike for a designer to want to retain exclusive copyright to their creative work (images+CSS), because it happens to cohabitate with a WordPress install, let me just say this: I really don’t care what your opinion is, I only care about the facts.
And while some designers/theme developers whine over how they need to make money and so nobody should ever redistribute their theme without paying, let me just say this: I really don’t care what your opinion is, I only care about the facts.
My point, is that I am impartial to the opinions and/or complaints for the purposes of this post. I have my own opinions, but I am not even going to state them, because my opinions do not apply to the facts. The only thing that has merit in application facts. I define the facts as:
- What the GPL actually says.
- How competent attorneys interpret that.
So what are the facts? If you do just a little bit of research, they are not hard to find.
The answers
Do I have to GPL my theme and design?
The concise answer is: Yes, your theme code has to be GPL licensed if you choose to distribute it but your design (images+CSS) does not.
When you create a unique work, you assume the exclusive right to distribute that work; this is referred to as copyright. A copyright holder can also choose to grant licensing to others in almost any way they want.
When software is licensed under the GPL the creator gives up their exclusive copyright to distribute that work. Upon distribution, all derivative and dependent code is also infected by the GPL license. (See the actual GPL text for more detail.) There are two ways for a work to become licensed by the GPL: by infected distribution or by declaration. Once GPLed, the distributor can no longer prohibit re-distribution by the recipients in any way except that further derivatives by others will also be infected if/when they choose distribution.
Theme code gets automatically infected upon distribution, but the images+CSS are considered independent works and so they do not. You have to choose to give that license to those items. Beware that if you distribute your theme without specification that images+CSS should be treated differently it will almost certainly be assumed that they are GPL. And like anything, your rights don’t matter much unless you are willing to protect and enforce them.
I am going to take some liberties in interpreting the common questions: In general, I do not think designers/developers are seeking restrictive licensing when it comes to the use of template tags (WordPress specific functions) or their html tags or even element selector names; we all use common layout structures. The questions that arise are surrounding new works, which are either 1) design images+CSS or 2) custom coded extensions to the theme which definitely use some WordPress functions, but may be largely new works.
Regarding theme extensions: For example, functions.php may contain code to give options that show up for the user in the admin interface. This type of addition is most likely going to be infected by the GPL if it has to talk back and forth to WordPress and won’t function without it.
Regarding the design: images+CSS are not infected by default; you at your sole choice have the right to retain all copyrights afforded to you if you created original works of images+CSS. You can keep all your rights or choose any licensing, even including more liberal licensing than GPL and grant them to anyone. The fundamental difference between theme code and images+CSS is this:
- your images+CSS do not even need to live in the theme folder to function: you could link to them anywhere on the web, they could be used on many other sites.
- neither the creation nor the use of images+CSS depends on or link into WordPress software.
Don’t believe me? You can look to the WordPress.org post by Matt Mullenweg on the topic. He had some attorneys at the Software Freedom Law Center to clarify the issue this and they said verbatim:
“The CSS and image files are simply read by the server as data and delivered verbatim to the user, avoiding the WordPress instance altogether. The CSS and images could easily be used with a range of HTML documents and read and displayed by a variety of software having no relation to WordPress. As such, these files are separate works from the WordPress code itself.”
I am not pulling an ambiguous quote out of that document. I encourage you to go and read it for yourself as it also clarifies my first point which is: anything that talks to WordPress is GPL. Not to mention, that the GPL itself has some pretty good documentation on the ins and outs of the license.
Do I have to distribute my theme?
GPL becomes effective upon distribution, and no, you never have to distribute.
Nobody can make you distribute GPLed software. What GPL does is make sure nobody else can restrict you from redistributing GPL code. The GPL is there to give you rights, but never take them away. So if you do private work owned by you or your clients and it is decided that you will not distribute your theme or WordPress installation, nobody can pull it off your/their servers and nobody can demand distribution.
This means that if you do custom theme development that gives your client options in the admin interface, nobody can force you or them to redistribute. However, if you are selling premium themes, you can’t restrict other people’s use of your theme code that is infected by GPL by distribution.
The Disclaimer
For the record: I am not a lawyer in any way shape or form. I do not even work in a law related field at the moment. I am a web designer and developer who happens to have a Bachelor’s Degree of Legal Studies; I took two special topic Intellectual Property classes in college and I have a strong interest in anything law+internet+licensing related. I can read and interpret legalese pretty well, although in this case I am not relying on my own interpretation but on the interpretation of experts that have been linked to. In any case, do not take my word as golden; do your own due diligence or talk to an attorney.
Additionally, I do not claim in any way that this is a comprehensive or complete explanation of these questions. My attempt is only at a good general overview. Yes, I am positive there are examples of grey areas, but I do not really have time to even attempt to analyze them all.
Before I sign off
The experts have spoken and it doesn’t matter whether or not anyone thinks it is good or bad. The truth is that the GPL was never meant to apply to design image files or other data, like people’s content. That doesn’t even make sense. If the GPL infection could take away your licensing rights to any images linked to by your CSS, *all* your content would be in danger. I get why this may seem unfair to plugin developers who have generously dedicated many hours to GPL plugins and are told they don’t have licensing decisions, but it all boils down to this: plugins and theme code need WordPress to function; design+CSS can function anywhere.
From what I can gather, these answers are common practice in other GPL open source CMS software although it’s been a cloudy issue within the WordPress community.
And finally, I will give one opinion that I hold on the matter: I greatly appreciate all the long hours and hard word of everybody at Automattic and every plugin developer and theme developer or designer who has released contributions. WordPress is WordPress because of all the awesome functionality it has and the flexibility with which people can use it. I think it is awesome. I also appreciate *all* the designers and developers who promote the use of WordPress by their clients through offering custom work or premium themes and teaching people to use this awesome software. We all contribute to mind share, even the people who just plain write in WordPress blogs.
7 comments
How about css and images controlled by backend options in functions.php. They`re integrated in the WP code and becomes GPL by “infection” as you put it, dont they ?
Nailed it!
I can see the points you are trying to make but the problem is that this is not a black and white issue. For a start, the GPL does not “infect” anything. The GPL is simply a copyright license that grants certain freedoms as long as the terms of the license are met, namely that any distribution will use the same license. Licensing code under the GNU/GPL doesn’t magically turn it into some kind of microbe that can infect anything it touches!
The second issue I have with your statements is that ANYTHING that is standalone from the WordPress code can be licensed under any terms the original developer or designer wants. This means images, CSS, JavaScript, AJAX, and can also mean HTML. If it can be used completely independently of WordPress and is not distributed with WordPress or with any code that derives from WordPress, the WordPress copyright does not apply to this separate work.
The FSF gave their opinion (note: “opinion” only) that the “classic” and “default” themes that are distributed with WordPress are derivative works and would therefore need to be licensed under the GPL if they were distributed by 3rd parties. Those are the only themes they commented on. This does not mean that other themes are necessarily derivative.
You have made a great effort to describe a complex issue and I hope it doesn’t confuse people. It would be great if the application of the GPL was as cut and dried as you make it out to be, but its not – if it was then FLOSS communities would not have spent years arguing over how to interpret the license
Elpie,
I actually agree with everything you said. This is the problem with a topic this huge. Yes, I completely left out all kinds of really important stuff because it is simply a blog post trying to address two very specific questions…not the gpl as a whole. Obviously “infect” is not a legal definition, just common metaphor for licensing restrictions.
I completely agree. WordPress cannot infect jQuery for example just because it links to it. I thought about mentioning those other things, but was trying not to become too verbose and hopefully it is easy to extrapolate from CSS to javascript. Like CSS, jQuery doesn’t need WordPress to live, can be linked to anywhere and pretty clearly it is outside of the issue. And yes, I do not even think the HTML issue is cut and dry. But with HTML, my point is that I don’t think the tag structure is usually valuable enough for people to care about independent from CSS/javascript, they are used by all in very common structures and even outside of GPL I don’t know if they would constitute original works…if that makes sense.
And yes, they SFLC is only an opinion…I just give it more credence than the opinions of bloggers and have tried to keep my opinion out of it. Because there is no judicial judgments to clarify, relying on gnu docs and SFLC attorneys as opposed to personal opinions is just the best authority we have…and I do think what they have said makes sense…and I do think one can extrapolate it to apply to javascript and probably some instances of HTML…maybe. And I think because of that, it answers common questions of theme designers…although admittedly does not answer other important questions plugin developers may have, or components that live outside a theme.
I also hope I did not confuse anyone. I tried very hard to focus on the questions, cite my sources which people can choose to rely on only if they want and even disclaimed: “I do not claim in any way that this is a comprehensive or complete explanation of these questions”
I am just plain tired of people thinking of a theme as one comprehensive work which is either GPL or not. My whole goal was to point out that is most likely *not* true and there are various components that can and should be treated differently including having specific licensing references by the creators.
John,
I do not know how gnu and/or attorneys would answer that. I have been trying to keep my own opinions out of this as much as possible.
If I had to, I might venture that CSS+images that a theme extends to admin would be hard to construe as an original creative work available for copyright anyway as they tend to just add a few buttons that appear in many cases seamless with the admin interface. In other words, are people really looking to hold copyright to some grey buttons and input fields as an original creative work?
I probably shouldn’t even answer this. Yes, there is a lot of grey area with this issue. And no, I don’t know the answers. My post was not even about my opinion, just answers based on gnu/SFLC attorneys. The only thing that seems to be clear is: in the case of themes; images+CSS linked to as data does not need WordPress to function can have separate licensing. However, that also assumes that those items are unique and original and available for copyrights. But if one takes and uses another design, the new work isn’t really a new work and isn’t copyrightable in any case…from what I understand.
Again, I am no judge and jury…this is just my understanding…
Note that the term “infect” is a term that people use for the GPL because it has “viral” licensing. If a “viral” license reaches out and impacts something, then (on analogy with viruses), that thing is infected.
http://en.wikipedia.org/wiki/Copyleft#Viral_licensing
Yes, the FSF doesn’t much like the term, but it seems fairly apt. Got a better metaphor for the GNU’s viral clause?
What an interesting read.
My recommendation (like you imply) would to ignore the vocal minority and try to focus on what people like Matt Mullenweg and Jane Wells post on the topic.
I think 2 facts we can agree on are;
1) you’re allowed to sell your GPL plugins and themes – but the GPL distribution rules apply
2) to get your theme in the wordpress extend repository it needs to be GPL – otherwise you will need to self host it
3) for anything else don’t ask me
I also found this very interesting. But then I find most things Ian Stewart has to say as interesting:
http://themeshaper.com/premium-theme-release/
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