GPL, Licensing, Reader question, Themes
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A reader asks: Selling ThemeForest themes outside of ThemeForest

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Questions

Alex asks these questions (I’ve amended them slightly):

“I have come across sites that are charging to download ThemeForest WordPress themes and are adding a note stating they are licensed under the GPL. I looked a number of those themes up on ThemeForest and they were not licensed under the GPL or were only partially licensed under the GPL.

I am planning to sell WordPress themes and would appreciate a clarification as to the licensing that ThemeForest is purporting to use. (As of this writing, very few businesses on ThemeForest have opted to use GPL, so where does that actually place a theme sold on ThemeForest?)

A few theme authors have adopted the 100% GPL licensing but the majority have not. With that stated, could someone (such as myself) resell the theme in question, [Hypothetical Theme], by attaching the GPL license? I understand that ThemeForest is claiming they have a totally different license in effect. That seems to be where the confusion is.”

These questions could span a number of different scenarios:

  • a theme author who sells her theme on ThemeForest, under a split licence, decides to sell the same theme independently under the GPL on her own theme site;
  • a theme author who sells her theme on ThemeForest, 100% under the GPL, decides to sell the same theme independently under the GPL on her own theme site;
  • a customer buys a licence to a theme on ThemeForest, under a split licence, and then decides to make some cash off it by selling it on his own site under the GPL; or
  • a customer buys a licence to a theme on ThemeForest, licensed 100% under the GPL, and then decides to make some cash off it by selling it on his own site under the GPL.

In addition to considering these scenarios, it’s important – I think – to cure some of the potential misperceptions as to what Envato is doing. Envato Pty Ltd is the company behind ThemeForest and other Envato Market marketplaces. That’s why I often refer to Envato in this post.

The answers to these questions are fairly straight-forward but, to understand them fully, you need to be familiar with relevant provisions of the Envato Market Terms as well as the Author Terms that apply to theme authors who sell their themes on ThemeForest.

Elephant

Image by Vensk / Bigstock.com

Image by Vensk / Bigstock.com

Before I get into all this, though, it may help to get an elephant out of the room by saying this:

There is nothing at all legally wrong with what Envato is doing with WordPress themes on ThemeForest. To the contrary, in my view, its terms are clear and understandable (at least in relation to themes) and its business model is now consistent with the requirements of the GPL. Envato is not taking GPL’d themes and unilaterally applying a more restrictive licence to them. Rather, it provides a marketplace through which theme authors can sell licences to their themes and, as part of that, the theme authors can choose whether to license their themes under a split licence (part GPL, part proprietary) or 100% under the GPL.

I say this simply as a lawyer looking through a window at the legalities of the situation. (I have no relationship with Envato of any sort other than as a purchaser of themes from ThemeForest and plugins from CodeCanyon.)

I’m well aware of past controversy around ThemeForest’s approach to licensing but, at the end of the day, it’s a business making commercial decisions and, in my view, what it’s doing with WordPress themes is legally all above board. And it clearly has a huge number of happy customers. Just take a look at its statistics.

Envato/ThemeForest has been judged in the past for whether it complies with the GPL or with what some might say are broader WordPress community norms but, as I’ll discuss further below:

  • Envato’s current approach to dual licensing is consistent with the Software Freedom Law Center’s opinion on WordPress themes; and
  • its enabling WordPress theme authors to choose a 100% GPL licensing option is consistent with community norms.

Whether an individual theme author chooses the 100% GPL option when using ThemeForest is now a decision for it, just as it would be if it were selling themes on its own website.

(I’m aware of the tensions that preceded the current state of licensing on ThemeForest but there’s no need to dredge that up here. Since drafting this post, I also see there’s an interesting post on WP Tavern about Envato and ThemeForest. I don’t get into the issues addressed in that post but some of the hostile remarks people are leaving in the comments sound a bit extreme to me. Sure there are some suboptimal themes there (I’ve suffered from one in the past) and sure there are probably some people  just trying to make a quick buck without much thought for standards and customers but that’s the same in many markets; quality and service differ. High quality theme vendors like WooThemes, Orman Clark and Mike McAlister have sold or still do sell their themes on ThemeForest. In my view you can’t tar them and many others with the same negative brush. And I bet those who are making big dollars from ThemeForest are pretty happy about it… .)

Now let’s take a look at Envato’s terms.

The Envato Market Terms and Envato’s Author Terms

Envato-Market-Terms

When you create an account with and sign into ThemeForest, you need to click a box stating that you have read and agree to the Envato Market’s Terms and Conditions (and Privacy Policy). The Terms and Conditions link takes you to a page that contains various sets of terms: the Envato Market Terms, Author Terms, Affiliate Program Terms, Privacy Policy and Envato API Service Terms and Conditions.

The terms that are relevant for present purposes are the Envato Market Terms and the Author Terms.

Under clauses 28 and 30 of the Envato Market Terms:

  • you’re told that, if you wish to become an author, the Envato Market Terms will continue to apply along with the Author Terms you’ll sign up to as an author; and
  • authors own the items they sell licences for on Envato Market (in other words, there is no transfer of copyright or any other form of property ownership to Envato). This is further explained in Envato’s Author Guide.

Under clause 9 of the Author Terms you are told that, when you become an author, “you can choose to make your items available exclusively on the Envato Market or have the option of selling your items elsewhere”. You’re told that “the percentage of revenue you receive from each sale of your item will vary depending on your choice” and that you “can change your exclusivity status which will affect the percentage of revenue you get after you change your status”. In essence, if you take the exclusive path, you’re paid more for each sale of your item. Envato explains the differences in clauses 10 and 11, on its Become an author page and in its Rates schedule.

Under clause 23(a) of the Author Terms, theme authors promise to Envato and each buyer of their items that the authors own or have rights to use the intellectual property rights in the items and that the items do not infringe the intellectual property rights of third parties.

The Author Guide sets out 6 additional rules, including these two:

  • 1. The items you upload for sale must be your own creation. Do not submit works based on tutorials or other people’s designs.
  • 2. You must have the rights to license the items you upload, either because they are your own original content, or because you have a license that grants you permission to resell any third-party assets included with your item.

With these provisions in mind, we can move to the different scenarios described above.

Theme author who sells theme on ThemeForest, under a split licence, decides to sell same theme independently under the GPL

Before answering this question, it may help to describe the Envato split licence. As noted above, theme authors can choose whether to apply this licence or to license their themes 100% under the GPL. Envato explains the split licence as follows:

“Envato Market’s license for themes or plugins sold on the Envato Market sites covers all the components of these items, except for the specific components covered by the GPL. This is why it’s called a split license: because different license terms can cover individual components that make up a single item.

The PHP component and integrated HTML are covered by the GPL. The rest of the components created by the author (such as the CSS, images, graphics, design, photos, etc) are covered by the Envato Market license.”

(For the wording in the licence itself, see clause 13 of Envato’s Regular Licence.)

This split essentially mirrors the same distinction drawn in the Software Freedom Law Center’s opinion on WordPress and themes. This is what, in part, that opinion said:

“On the basis of that version of WordPress, and considering those themes as if they had been added to WordPress by a third party, it is our opinion that the themes presented, and any that are substantially similar, contain elements that are derivative works of the WordPress software as well as elements that are potentially separate works. Specifically, the CSS files and material contained in the images directory of the “default” theme are works separate from the WordPress code. On the other hand, the PHP and HTML code that is intermingled with and operated on by PHP the code derives from the WordPress code.

In conclusion, the WordPress themes supplied contain elements that are derivative of WordPress’s copyrighted code. These themes, being collections of distinct works (images, CSS files, PHP files), need not be GPL-licensed as a whole. Rather, the PHP files are subject to the requirements of the GPL while the images and CSS are not. Third-party developers of such themes may apply restrictive copyrights to these elements if they wish.”

Note, also, that the split licence is from the theme author to the customer, not from Envato to the customer (see clause 18 of the Regular License).

Returning now to the question, a theme author who sells a theme on ThemeForest under a split licence can sell the same theme elsewhere, independently of ThemeForest and 100% under the GPL if s/he wishes, as long as the theme author has chosen the non-exclusive option for sale of the item on ThemeForest. (The only qualification here is that if the theme author has used, say, third party images licensed under, for example, a Creative Commons licence, that licence continues to apply to those images.) The reason for this is that the theme author is the owner of the new copyright in the work and, subject to complying with any applicable GPL requirements, can license the work as s/he pleases.

If, however, the theme author has chosen the exclusive option on ThemeForest, selling the theme elsewhere would be contrary to the agreement with Envato. This is not inconsistent with the GPL. The restriction on the theme author’s ability to sell the theme elsewhere arises from his or her contractual obligations to Envato.

This is what Envato has to say about breaching one’s exclusivity obligations:

“What happens if I don’t meet exclusivity?

Depending on the extent of your breach of exclusivity, it may be decided that your rate is reduced to that of a non-exclusive author or if your breach is considered serious enough, you’ll be disabled as an author completely and you may lose your ability to sell with us in the future.”

Theme authors selling on ThemeForest and elsewhere

As an aside, well-known theme authors who sell on both ThemeForest and elsewhere include:

Some other authors, like Kriesi, sell on ThemeForest (he uses the split licence) and merely promote their themes elsewhere, with all sales going through ThemeForest. Others, like Mike McAlister and his crew, got going on ThemeForest and then moved to sell their themes independently. As many will know, Mike’s OkayThemes morphed into Array.

Theme author who sells theme on ThemeForest, 100% under the GPL, decides to sell same theme independently under the GPL

The same answer applies in this scenario. The theme author can do this as long as the theme author has chosen the non-exclusive option for sale of the item on ThemeForest. If, however, the theme author has chosen the exclusive option on ThemeForest, selling the theme elsewhere would be contrary to the agreement with Envato. Again, this is not inconsistent with the GPL. The restriction on the theme author’s ability to sell the theme elsewhere arises from his or her contractual obligations to Envato.

Customer buys licence to theme on ThemeForest, under a split licence, then decides to sell it on his or her own site under the GPL

In this situation the customer would be infringing the author’s copyright because the split licence would not cover all contents of the theme file. Whilst the GPL’d components could be copied, adapted and re-used in accordance with the GPL’s freedoms and subject to its requirements (e.g., as to including the notices/licence statements in the theme files), the non-GPL’d components could not. They could only be used in accordance with the non-GPL, proprietary side of the Envato split licence. That side of the licence limits use of an item to “create one single End Product for yourself or for one client” (clause 2 of the Regular License, which is explained in more detail in other terms of the licence).

The theme author could bring an action against the customer for copyright infringement. Envato could also have a crack against the customer because:

  • under clause 18(f) of the Envato Market Terms, Envato has “the right to enforce against you the terms of the license that you have acquired from an author”; and
  • under clause 34(f) each Envato customer promises that it will not “modify, reproduce, display, publish, distribute, copy, transmit, perform, license, create derivative works from, transfer, or sell or re-sell any information, content, software, or item obtained from or through the Envato Market, other than in accordance with these terms or the license for the item.”

The bottom line, then, is that buying a theme on ThemeForest that is split-licensed, and then selling it on your own site, is not a good idea.

Customer buys licence to a 100% GPL licensed theme on ThemeForest and then decides to sell it on his own site under the GPL

In this situation, the customer would be selling the GPL’d theme (that someone else has written) on his own site as a downloadable zip file. I’m not looking at the scenario where a web agency uses a commercial theme as a starting point for a client website (which of course is very common).

The customer’s selling of the 100% GPL’d theme on his own website, as a downloadable zip file, would be permissible under the GPL. It is unlikely, however, that the enterprising chap here would be able to provide the same level of support and updates as the original theme author. He would also need to:

  • include all original GPL-required notices with the theme files;
  • be careful not to infringe any trademark that the original theme author may have associated with the theme or to pass himself off as the theme author or as having any association with the true theme author if that weren’t the case or to mislead customers in any other material way.

That’s a wrap!

I hope this post answers your questions Alex. All the best with your theme business. And if you sell on ThemeForest, may you sell as much as Kriesi!

(Image used for featured image: Dejan Brkic / Bigstock.com)

2 Comments

  1. Simron says

    GPL is a viral licence. You can’t ‘partially’ licence your code as GPL. There is nothing like 90% GPL product or 100% GPL product.

    That is the problem with GPL. If any item of your bundle is GPL’ed then your whole bundle is GPL’ed (if the non GPL components need the GPL component to function, directly or indirectly).

    • Richard Best says

      Hi Simron and thanks for your comment. I don’t entirely agree with it though and nor does the Freedom Software Law Center in its opinion on the licensing of WordPress themes. In commenting on this issue it might help to distinguish between two scenarios.

      The first scenario is where the owner of all the copyright in a work or works (let’s say a new plugin or theme that doesn’t use any upstream GPL’d code) is licensing it for re-use. In this scenario, no GPL terms apply to restrict the freedom of the copyright owner to license the work as s/he pleases. The owner is perfectly within his or her rights to apply the GPL, say, to all PHP and HTML, and a more restrictive licence to, say, the CSS and images. It is downstream users that are subject to the GPL’s controls, not the owner when s/he is deciding how to license her work(s).

      The second scenario is where someone uses pre-existing GPL’d code in his or her own work. In this scenario, derivative works of the GPL’d code must be licensed under the GPL if distributed but there are circumstances where discrete and separable works that are bundled with the derivative work (e.g., image files, CSS) do not have to be licensed under the GPL. This is the view of the Freedom Software Law Center and I agree with it. The basis for this position seems to be these words in the GPL v2: “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”. Now, I know what some people will say. They’ll point to these words in the GPL to argue that I’m wrong:

      “But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.”

      The argument some people will make is that if you include a CSS file or an image file (say) in a theme or plugin zip file, then you’re distributing the same sections as part of a whole and, as such, all items must be licensed under the GPL. The problem with this argument is that it doesn’t focus sufficiently on what “whole” means in the sentence above. The relevant phrase is “a whole which is a work based on the Program”. “Work”, in this phrase, should be interpreted to mean a copyright work. Thus, the phrase should be interpreted to mean: “a whole which is a copyright work based on the Program”. A separate CSS file or image file is not a “copyright work based on the Program”. Even if the zip file contents can be considered a collective work (a collective work is a particular kind of copyright work), arguably it is still the case that the collective work is not a copyright work that is “based on the Program”.

      One can, of course, argue these points, to and fro, endlessly. This is due to the ambiguity in the wording of the GPL v2 and the absence of case law on its terms. The positions I support above are the ones I think are correct. Others may disagree.

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