Lazy Brains
Lazily brain-ing on philosophy, science, design, social media, New York City, and my dog, with an occasional dash of law school.
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A client approached me about creating a website. I asked him what he wanted, and he didn’t respond. Instead, he wrote back a few days later with this question.
Client: Can I copy the layout from this website? It’s for a business that no longer exists.
Me: No, that’s illegal. You can’t use someone else’s property.
Client: But there’s nothing to prove who made it!
Me: It doesn’t matter, you’re not the creator, nor did you pay for that site. You can’t take what’s not yours.
Client: Seriously? This guy doesn’t have provide any contact info, his Behance portfolio is clearly abandoned and his personal website is down. How could anyone say that it’s plagiarism?
Me: I can. It’s plagiarism.
Client: But would anyone catch me?
Me: …
The kicker? I know the designer he wanted to rip off, and you’d better believe I’d let him know if this guy stole his work.
Wellll, depending on the exact design of the site that the client wanted to copy, his request may be more more theoretically illegal than actually illegal.
The client’s arguments in support of his design theft are clearly incorrect, but it is by no means clear-cut when (and how much) copying someone else’s web design constitutes intellectual property infringement.
While an original web design is copyrightable subject matter, there is also a concept called “scènes-à-faire” in copyright law. In a nutshell, it means that the common ideas or purely functional elements embodied in a work are not copyrightable. Web design, by its very nature, is neither purely aesthetic, nor purely functional. In fact, the best designs are admired for their ability to beautifully and efficiently present a user with the desired information.
All web designs include a number of functional elements - navigation, menu, headers, columns, etc. - and there are fairly standard versions of the arrangement of these elements. At what point a design moves from “standard” to “original,” however, is not something that is clearly established by the law. Even some arrangements that seem to have more ornamental elements to them - overlays, drop-downs, highlights, etc. - might still not be original enough, due to the sheer proliferation of similar web designs and the need for standardization across platforms and user experiences.
“Not every elegantly-executed, award-winning page constitutes an original idea.”
- Jay Judge, quoted by Paul Wallen in “Design Plagiarism: Myth or Reality?”
“Building on the same foundation as other sites — specifically, layout and information architecture — often leads to intuitiveness and familiarity for the end user.”
- Cameron Moll, “Good Designers Copy, Great Designers Steal”
This is an instance in which UI/UX-based design may actually work as a double-edged sword (and I would love to know if someone else has done more in-depth research on this issue). Design that is geared towards increasing the functionality of the website might not be considered copyrightable. (Savant Homes Inc. v. Collins, pp. 14-15, has a list of architectural elements that the court held to be unprotectable because architects use them for practical reasons.) So, as design evolves, and we can build better and better user experiences, the elements of the design that create those experiences might become less protectable.
None of that is to say that there is no such thing as copyright infringement of another’s web design. It exists; it’s just not very clear what the law would say that infringement looks like.
Because designers regularly take inspiration from collections of other websites, and there are common trends in the industry (such as the adoption of responsive web design), there has evolved an implicit code of ethics, in which copying of elements is permissible, but only in moderation … Perhaps the optimal solution … lies in the © symbol itself, which derives significance not in legal strength, but rather in the cultural expectations of the web design community … This notice is a signal that self-respecting designers taking inspiration from a given site should not copy directly.
- Florina Yezril, Somewhere Beyond the © : Copyright and Web Design.
And none of that is to say that there is no value (intrinsic or monetary) in creating original design. The best designers will always be at the forefront of innovation, giving us a web that is ever more beautiful and accessible. Just replace “architect(ure)” with “web design(er)” in the following quote:
[A]rchitecture, by its very nature is a “transformative” rather than an “inventive” process. Because it is a public art form, architecture is taught and learned by studying other architects’ work … An architects’ motives for creativity are more complex than profit. In order to stay current, an architect must always innovate: “[t]o copy others is necessary, but to copy oneself is pathetic.”
- Antoinette Vaca, The Architectural Works Copyright Protection Act: Much Ado about Something? pp.120-122.
P.S. If you want (a) a horror story about a legal client, and (b) a further very thorough discussion of copyright in [architecture] design, read this case (esp pp.1293-1295).
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