Everyone loves a winner–sometimes so much so that they decide to rip him off. A couple of weeks ago, the New York Times reported on uncanny similarities between two campaign websites, one for Israeli prime-minister candidate Benjamin Netanyahu and the other for U.S. president-elect Barack Obama, designed by Blue State Digital in Washington, D.C.
At first glance, the resemblances are striking: matching blue palettes, nearly-identical layouts, similar navigation systems, placement of promotional videos–even Obama’s “Yes we can” appears to be countered with Netanyahu’s “Together we can succeed.” Hmmm. Graphics and text are different, but much about the sites is eerily the same.
Still, Obama for America (OFA), which owns Obama’s site’s content, may opt not to sue. Website design has evolved from software design, in which a program’s look and feel can be protected, but, according to Sherwin Siy, a staff attorney at Public Knowledge, a D.C.-based digital-rights public interest group, it’s not as cut-and-dried with web pages. “If no one directly copied the underlying code, the question is whether imitating the layout is itself a copyright violation,” he says. “How much of the design was dictated by creativity versus the functional needs of putting together a readable website?”
Whether in the creation of bumper stickers, yard signs, or web pages, contemporary campaign design often struggles within a narrow set of color schemes and user-tested messages; imitation, as one of Netanyahu’s campaign advisers was quick to point out in the Times piece, is a form of flattery. But when does imitation become duplication? “It’s not like a patent; independent creation is a legitimate defense,” Siy says. “If I can show that I came up with the same site layout as you did without copying it, I’m not an infringer.” For design teams using similar sets of templates, there is frequent overlap.
One final note: The Berne Convention, signed in 1886 and expanded in 1996 to include Internet issues, protects copyright across international boundaries. If they chose, OFA could take legal action. But with little legal wiggle-room and less than three months before the Israeli election, the point may be moot. Netanyahu holds a razor-thin edge over his competition, and seems willing to do whatever he can to maintain it–even, evidently, crowd the intellectual property of a successful American candidate. In the end, design doesn’t matter; it’s all about winning the race.