The other day my 5 year old showed me a picture of a totem pole she'd colored. She pointed out various things, then hesitantly confessed she'd copied one part from her older brother's totem pole. She was pretty surprised when I explained this was perfectly all right--that, in fact, I copy bits and pieces from other people all the time in my work. It's the way we learn.
Recently, a well-known designer discovered that someone had stolen one of his designs and put it on the web as his own. These two incidents, coming so closely together, got me to thinking about the difference between legitimate imitation and fraud.
Designers Are Magpies
As designers, we often mimic the techniques of other designers. We read and follow tutorials published for this very purpose. Like magpies we fly around the web, gathering up anything bright and sparkling to bring home and use in our own sites.
On this site, I can point to a whole host of excellent designers I've copied from: The drop shadow on the sides is from the previous version of Keith Robinson's Asterisk; the rounded-corner box of the right-hand menu comes from a tutorial on Stu Nicholls' CSS Playground; the top navigation bar is a combination of Roger Johansson's 456 Berea Street menu and tutorials on Max Design. I'm pretty sure I found inspiration from SimpleBits, StopDesign and of course, the CSS Zen Garden.
Yet, although I copied other people, no one in their right mind would say this web site looked anything like Asterisk, 456 Berea Street or SimpleBits. Only in my dreams do people see my resemblance to StopDesign.
The difference between imitation and copyright infringement, then, is partly a matter of degree--I took bits and pieces, not a whole design. I also changed each fragment of code a little, making it unique.
But why is that okay? Is it really all right that not one single part of this site is truly and completely original? How am I different than the guy who stole another's design and used it as his own? I'll bet he changed the code a little bit, too. So what's the difference?
In web design, you can take the bits and pieces that other people have used a thousand times and, recombining them, create something fresh and new.
This puzzled me for a while. I mean, how can that be? How can you take things that are not original and end up with something original? It seems illogical. Then I remembered the scientific concept of emergence.
In science (particularly physics), the sum of the parts can be greater than the parts themselves. This is emergence, and emergent qualities are elusive little devils because they aren't intrinsic to their parts. They only "emerge" when the parts are brought together as a whole. For instance, everyday millions of people use the words "not," "be," "or" and "to." Yet when you bring these words together into the combination "To be or not to be," you've created a meaning that not one of those four words actually possess. Suddenly and mysteriously they've become worlds of images and meaning.
To use another example, a musical note is just a musical note. An A flat is an A flat. C minor is C minor. Yet combine those notes one way and you have Carlos Santana. Recombine those same notes and you've got a Beethoven symphony. As the physicist Paul Davies said, it is ridiculous to think that "a Beethoven symphony is nothing but a collection of notes or that a Dickens novel is nothing but a collection of words...the theme of a tune or the plot of a novel are what have been called 'emergent' qualities. They emerge at the collective level."
A web site is not just a collection of code. Put together in a particular arrangement, that code creates a quality far beyond what any of the code actually possesses. The beauty of sites like Jason Santa Maria's and And All That Malarky is not in the individual pixels and code and colors that make them up. And yet the beauty emerges mysteriously from them. Those designers have created something greater than the parts. Something from nothing. Maybe 2+2 does equal 5.
If you ask me, that's about as close to magic as any of us are likely to get.
Drawing the Line
For me, that's where the difference lies between imitation and theftdoes the site have an emergent quality of its own? If the answer is yes, then it is original as a whole. If no, well, you'd better call an attorney.
As for those who pilfer other people's designs, I like to think that their greatest punishment is something they will never even be aware of. Those people will never experience the thrill and satisfaction of creating something original--of making magic. So, all right, they don't know what they're missing.
But we do.