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Originally Posted by chipbennett  I believe you have the issue of applicability backwards here. The issue isn't whether or not the theme would function (properly or otherwise) without the image, but rather whether or not the image can function without the theme. (From my also-non-lawyer reading of the GPL, the license is pretty clear on this point.)
In image file certainly doesn't depend on a WordPress theme to exist or to function; therefore, it isn't a derivative work and the GPL neither imposes nor claims to impose applicability upon an image file in a theme, merely because of its inclusion. |
Define "work". What is the "work" in question? Are you distributing the image files separately? Do you ever refer to them as being part of the theme?
Your argument here is facetious on the face of it. You put the images into the theme, the PHP files refer to them, the CSS files refer to them. If they were removed, the theme as a whole would be incomplete. The images are part of the theme, and the GPL applies to the whole work, not just parts of it.
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Originally Posted by chipbennett WordPress does not define the specification to which CSS files must conform; rather, the W3C defines this specification. |
The comment at the top of the CSS file must take a specific form in order for the theme to be a WordPress theme. The file must be named "style.css". There must exist specific classes in the CSS for things like captioning and image alignment to work correctly.
Don't be so literal.
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Originally Posted by chipbennett Likewise with images, a CSS file does not depend upon a WordPress theme to exist or to function; therefore, it isn't a derivative work and the GPL neither imposes nor claims to impose applicability upon a CSS file in a theme, merely because of its inclusion. |
You keep treating your theme as a collection of unrelated and independant files. Copyright applies to entire works.
Merely by virtue of the fact that there's a technical separation (a file) does not also imply that there's a legal one. Would you suggest that each page of a book is an independant copyright simply because they are on different pages?
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Originally Posted by chipbennett Since "fair use" is a vaild defense against a copyright infringement claim - even though it must be proven - you're not "breaking [US] copyright law" by quoting. |
Your own statement makes no sense. It's a valid
defense. If it doesn't break the law, what are you defending against? ;)
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Originally Posted by chipbennett This one is easy: I determine that images are separate works from the theme itself (in the context of the GPL) by virtue of all files in a theme being separate works. |
Why? Why make this arbitrary and meaningless separation? What is your basis in copyright law for believing that two files cannot be part of the same "work"?
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Originally Posted by chipbennett A theme isn't a compiled program but rather a collection of individual files. Thus, one cannot treat such a collection of individual files the same way as a compiled program. Each individual file must be considered with respect to GPL applicability. |
Virtually all programs are made of dozens or hundreds of independant files, and yet they are all a single work. The Linux kernal is a single work having thousands of files of all types. And the work as a whole is GPL'd.
The theme is the work. Separating those files into individual works serves no purpose in most cases. The files only have value when they are together as one whole thing. You made them together, I assume. You made them with knowledge of each other. You make a theme, you don't make a bunch of files.
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Originally Posted by chipbennett I am fully confident that a competent lawyer can easily prove that an image file in no way meets the GPL's definition of "derivative work"; therefore, I am fully confident that a court would agree with me on the matter. |
I am fully confident that you are deluding yourself in some way.
Also, the GPL does not define the term "derivative work". That's defined by the court system and copyright law.
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Originally Posted by chipbennett Again, the issue isn't validity or enforceability of GPL, but rather its applicability to non-derivative works. |
The GPL is not applicable to non-derivative works, obviously, because no license is applicable in such a case.
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Originally Posted by chipbennett Automattic/Matt are fully within their rights to do as they like with wordpress.org; I'm not arguing that point. However, the Theme Repository is ithe definitive source for WordPress themes.
Disallowing certain themes from the repository is a form of csensorship. Certainly, some censorship is good; censoring spam themes benefits the community.
The question, though, is whether or not it benefits the community to censor perfectly valid, fully GPL-compliant themes simply because the author supports/condones the existence of non-GPL themes. |
That's a different debate altogether.
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Originally Posted by chipbennett Also, I do not think that Automattic/Matt can claim that WordPress is a community project, and that wordpress.org is the WordPress community website, while at the same time making such decisions completely devoid of community input. It is not a matter of right or authority, but rather of appropriateness. |
I agree on that point, even though I support their decision in this matter.
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Originally Posted by chipbennett And what if someone creates an image, or develops a CSS file, and then puts that file into a theme? What if that person then conveys that file - not the theme, but just the individual file - to someone else?
Is that image/CSS file still "infected" (not my choice of wording, but can't think of anything equally descriptive) by the theme's GPL? |
Yes, actually it is, but I fail to see what the point of conveying individual images or files from themes would be. The theme is worthless in pieces.
However, be clear about who is doing this creation and distribution. If you created the image, you can license it however you like. It's yours. You own the copyright. You can then relicense it differently under another work if you so choose. It's only other people that cannot change your licensing terms.
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Originally Posted by chipbennett Further, if the person to whom that image/CSS file was conveyed then puts that file into another web site, or a theme for some other work that isn't GPLed (say, Drupal), does that otherwise non-GPL theme become "infected" by the WordPress theme's GPL? |
Three problems with this statement.
a) I do not believe that it is legal for any WordPress theme to be non-GPL. It is a clear license violation.
b) Drupal is GPL'd:
http://api.drupal.org/api/file/LICENSE.txt/7
c) Assuming your statement made sense in that respect, then yes, such another program would be required to abide by the GPL in a "viral" manner. GPL'd images is a topic of much debate in many places on the tubes.
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Originally Posted by chipbennett Clearly, the answer to both questions is "no" - and I am fully confident that any court in the country would conclude the same. |
Courts have already disagreed with you. Many projects have removed GPL'd images from their sources because of this issue in the past. However, for these cases, there exist GPL compatible licenses specifically for images that can be used instead. The LGPL has also been successfully used in this regard. I believe that the FSF currently recommends using the Free Art License for images, but I'm not sure on that as I think that license is not GPL compatible.
Basically, the GPL refers to "source code" which is vague when it comes to artworks. Nevertheless, being that the file is being redistributed in the same form in which it was received, then the GPL and it's "viral" clause absolutely does apply.