An Expert’s Opinion: Furthering Our Understanding :: :: Make It Your Choice!

I’d first like to thank Elliot for taking the time to further this discussion. He has provided a well researched, educated foundation that we all can learn from and reference in the future. Note, this will also be added to the PostNuke FAQ for future reference as we all know this issue is raised every few months.

Dear Vanessa and All Other Members of The Fabulous PostNuke Community:

I am an attorney-at-law, licensed by the State of Florida, and the United States District Court for the Southern District of Florida to engage in a multi-jurisdictional copyright and trademark practice. My practice focuses on cyberlaw (see Nothing contained herein is legal advice, nor should it be relied upon without independent research and consultation with a licensed attorney. The following discussion is limited to the laws of the U.S.

I have been asked to comment upon the following hypothetical. If a person or entity (jointly and severally referred to hereafter as “Party A”) creates a theme utilizing, or adds an original image or code to a GNU GPL program that was copyrighted subject to the GNU GPL ( see ), may another person or entity (Party “B”) distribute Party A’s distribution containing the new material without the permission of Party A because the entire work (including the new material added by Party A) has now become subject to the GNU GPL?

Also, you have asked me to assume the following notice appears on Party A’s

// ———————————————————————-
// Copyright (c) 2002-2003 Party A
// ———————————————————————-
// This program is free software; you can redistribute it and/or
// modify it under the terms of the GNU General Public License (GPL)
// as published by the Free Software Foundation; either version 2
// of the License, or (at your option) any later version.
// This program is distributed in the hope that it will be useful,
// but WITHOUT ANY WARRANTY; without even the implied warranty of
// See the GNU General Public License for more details.
// To read the license please visit
// ———————————————————————-

The pertinent portions of the GNU GPL are as follows:

“0. … the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.”

“2. … mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.

Pertinent Sections of United States Copyright Law:

Copyright protection extends to an “original work of authorship fixed in any tangible medium of expression. 17 U.S.C. 102 (a) at ( ).

Copyrights are divisible (i.e. you can retain certain exclusive rights, but transfer others). See Section 17 U.S.C. 106 (


The above license purports to convey via the GNU GPL rights to the “program.”

Since copyright is divisible, we must first determine the meaning of the word “computer program.” A definition for the term “computer program” is actually a question of fact that would need to be determined by a Court or jury. defines computer program as follows: “computer program n : (computer science) a sequence of instructions that a computer can interpret and execute; “the program required several hundred lines of code” [syn: program, programme, computer programme]”.

It can be argued that an image (which has been stored on digital media) is not a “program.” It is data which is called by a program. It would be an anomalous argument to propose that a copyrighted picture taken by the owner of the program and was included in his distribution of his GNU GPL program could be used unless the owner consented.

Similarly, it follows that a presentation, template or display, which is created utilizing copyrighted programs, may not in and of itself be a “program.”

Very generally, there is no impediment to obtaining independent copyrights for original works of authorship created by utilizing programs. If there were, Microsoft would be able to prosecute every author who submitted an original manuscript to a publisher in Word format and digital artists would be unable to copyright their works because they used a paint program.

Similarly, if someone creates a theme or skin that artistically rises to the level of an original work of authorship utilizing a program, the resulting theme or skin should be copyrightable separately from the program that created it. It could be argued that the skin, theme, or result is a new, original work of authorship fixed in a tangible medium of expression, and not a derivative or compilation of the original program (i.e. Word, Paint Shop Pro, or, for that matter, Autotheme).

Turning to paragraph 0. of the GNU GPL, licensing a program or work under its terms does not make all files included with the distribution subject thereto See paragraph 0., supra. In our hypothetical, the notice only refers to the “program”, and not any particular resulting theme or image therein.

Turning to paragraph 2. of the GNU GPL, “the mere aggregation” of an original work of authorship which is not a derivative or compilation of the program with the program (or with a work based on the Program) on a … distribution medium “does not bring the other work under the scope of the License.” In plain English, this means that just because a distribution contains some files which are subject to the GNU GPL, NOT ALL files contained in the distribution may be so subject. This argument should also apply to data entered into the program to make it display an original work of authorship.

With respect to the language contained in the notice contained in Party A’s distribution, a reasonable interpretation of same should lead a Court and/or jury to determine that a program is not the resulting theme, skin, etc., but a set of instructions that the “artist” utilizes to create same. Just because core code is distributed with additional files, or data is entered into existing code to make, draw or display the new skin on screen, should not, in and of itself, make the new files or data subject to the license. See GNU GPL paragraphs 0 and 2 above.

Pursuant to 17 U.S.C. 106, copyrights are divisible (i.e. you can retain certain exclusive rights, but transfer others). Accordingly, it could be argued that Party A’s copyright in and to the theme or skin or image remains the sole and exclusive property of Party A. If the argument succeeds, those who violated Party A’s exclusive rights (17 U.S.C. 106) in the resulting theme, display, image, skin, etc., face exposure to federal suit for copyright infringement.

Notwithstanding, the program code and modifications made thereto which are considered to be derivatives or compilations ARE subject to GNU GPL, unless the additional code merely “plugs-in” to the preexisting code, is “not based on preexisiting code,” and is capable of “standing alone.” Note, early cases did not hold telephone manufacturers liable for patent/copyright infringement because their pin out to wall jacks was identical to that of the other’s pin out, allowing access to the other’s network.

It would logically follow that a third party can utilize GNU GPL code to create an original work of authorship (i.e. a new theme) and obtain a copyright in the new material. However, if the resulting theme, display, image, and or template is similar to that which the artist has not released under the GNU GPL, the third party could be prosecuted for copyright infringement if that third party did not get consent (provided other procedural requirements are fulfilled).

It is worth mentioning that the creator of a program who initially released it under certain conditions, may be able to revoke same at any time (but this would require further research and is a topic for another discussion).

Elliot Zimmerman, Esq.
The Law Offices of Elliot Zimmerman, P.A.
5353 North Federal Highway, PH 405
Fort Lauderdale, FL 33308


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