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Web sites feud over design

A controversy is growing over the ownership of Web site designs.

When Da Vinci finished the Mona Lisa, it would have taken envious artists months to duplicate the masterpiece. In cyberspace, however, recreating art is as simple as peeking at its creator's digital blueprint.

Major Internet browsers allow surfers to see the source code of any document on the Web, allowing unrestricted viewing of HTML, the markup language used to build pages. This allows anyone to hijack a page's "concept," or series of codes, and give no credit to the graphic artists who spent long hours creating the unique look and feel of their sites.

The idea doesn't just bruise egos. It can dilute the corporate identity of online companies that depend increasingly on brand recognition to differentiate their sites from the rest of the chaos that is the Internet. On the flip side, many designers say that "viewing source," as the practice has become known, is a learning endeavor, and that borrowing ideas from cool sites to invent Web pages is no different from editors scanning newspapers for ideas to design the next day's front page.

Intellectual property on the Net is a key topic for international officials who work on trademark issues, many of whom met in Geneva last December to settle disputes over ownership of property on the Net. Trademark squabbles over domain names have also popped up in abundance. But filching Web designs has barely been explored in public debate.

In the meantime, examples of copycat Web sites continue to grow. The "borrowing" of Web site designs only further complicates the matter, intellectual property attorneys say. (The exception is parodies, which are exempt under copyright law.)

Take, for example, a recent dispute between two San Francisco publishers. Last week, the independent creator of the literary and art site Fray and the popular online magazine Salon found themselves butting heads over who "owned" a page design used by both publications.

Derek Powazek, Fray's creator, claimed that Salon had "stolen" an intricate design from him in the presentation of a column published by Salon this month. Salon says it used a similar concept a year ago but was inspired by Powazek and tweaked its design using his tactic.

No legal action was taken in the "he said, she said" dispute, but the controversy resulted in Salon crediting Powazek and his codesigner for their work. A line at the bottom of the Salon page in question now reads: "HTML coding inspired by Alexis Massie and Derek Powazek of the Fray. A variation of this design was done in April 1996 in Salon."

"Between the two of us, it took about 30 hours to design, but it only takes a matter of seconds to 'view source,'" Powazek said. "It's going to become more of an issue because the days of looking at HTML as a simple markup language are over. We can do things with HTML that are really unique and artistic. Web pages are unique expressions of art that can and should be copyrighted."

Salon's art director Mignon Khargie agrees that both creations are indeed art.

"Derek was totally right that he deserved credit for the time he put into constructing his page. These are new issues for design because the Web is new," she said. "But it's been the history of the Web that everybody learns from each other. This is the first time something like this came up at Salon."

She added however, "Design on the Web is a synthesis of what you do with images, with HTML and with text, so perhaps the entire unit should be looked at when issues of credit come up?"

Salon senior editor Scott Rosenberg says this isn't an issue of "swiping" copyrighted material. "HTML tags are just one part of what goes into designing sites as complex as Salon or Fray. No one could possibly confuse Salon's design with Fray's."

Members of both staffs agree that such scenarios are likely to occur elsewhere on the sprawling Web. And occurring they are.

Yahoo had its entire site lifted once. For Yahoo, the problem was alleviated by asking the site's creator to remove the site.

"They took all of our source data to create the exact same structure of Yahoo with a few cosmetic changes," said Yahoo's director of production Tim Brady. "We planted in our directory spelling errors and phantom sites to purposely protect Yahoo from this exact problem. That's how we discovered it."

Even NEWS.COM has found replicas of its design on sites such as Churches.Net and Inside Carolina.

"I agreed that the sites are too similar," said a spokesman from Inside Carolina, who asked not to be named. "I told people from CNET that we would make immediate changes. I already made design changes to make sure our graphics weren't exactly the same size or color. We are actively making changes to it, we just couldn't do it in the middle of our Final Four coverage."

CNET: The Computer Network, which publishes NEWS.COM, is still investigating the apparent usage of its design, and has sent letters to the sites expressing its concern.

"In the print world, it's been determined that you can't copyright layout. I would have to assume that that applies to the Web world as well," said Glenn Davis of Project Cool, a Web design consulting company.

"I don't see HTML code as something as protectable," he added. "In [the Fray-Salon case] in particular, Derek didn't even make a minimal effort to try to protect himself. There were no embedded remarks stating copyrights or ownership. It's quite simple for a designer to embed information of that sort in the HTML source code stating use/nonuse rights. Whether or not that protection would stand up in a legal battle, however, is another matter."

If online copyright owners wanted to take legal action, courts would have to define whether a series of codes used to build Web pages can be copyrighted or if a site's "look" can be trademarked. Navigation buttons or functionality tools are not protected by copyright, based on past rulings, legal experts say.

"Application of copyright law to 'look and feel' is generally uncertain. A truly unique 'look,' as far as organization and appearance of a site, is probably a copyrightable work of the creator," said Ray Harris, an intellectual property attorney with Fennemore Craig.

Robert Barr, an intellectual property lawyer for Weil, Gottshal & Manges, added: "If you're talking about color, arrangement, and borders and their relationship to other things on the page, people should look at copyrighting their HTML code. The Web is a lot more likely to bring out cases involving aesthetics and graphics because people spend hundreds of hours to make sure the sites look good."

Other attorneys say trademark infringement is another approach to take when arguing over Web design.

"The issue here is more about trademark," said William Galkin, a copyright and technology lawyer for more than ten years. "Is there commercial confusion? You have to prove that consumers are confused about where they are because of the look of the site. It's much more difficult with Web sites because there are so many pages out there using similar development tools and design elements."

Salon and Fray say they hope to hold a roundtable on Web design copyright and trademark issues. For now, however, Powazek warns designers to protect their art.

"One thing you can do is put copyright notices in the code of the pages. This is not something I thought I had to do until now," he said. "I'm not getting paid to work for Fray, and nobody should make money off my work either."