Can a .psd file be released with different terms if the resulting HTML template is GPL

Question

In web design, a common workflow exists where a designer creates a web site's theme within Photoshop which is then capable of exporting the design as HTML and CSS. Once granted copyright to the HTML the designer can license the templace as GPL or any open source license of their choice. However, I'm curious to what form of copyright is available to psd files and how (or if) this copyright may differ from the HTML produced by the psd design.

My questions:

1. Is a .psd file just a form of illustration, or are their additional rights granted by copyright due to their structural content etc.
2. Does this copyright extend to the resulting HTML. For example, if a customer purchases a .psd file from the designer and exports the design as HTML themselves, do the terms of the original psd copyright also apply to the resulting HTML, or vice versa if the designer only registers the HTML alone.

Answer 1

The short answer is "yes, the PSD file is almost certainly covered by copyright, and copyright generally works the same for all types of work, so the HTML and the PSD file are subject to more or less the same level of protection." However, the long answer is a bit murkier than you might expect.

Copyright laws differ considerably by jurisdiction. This answer focuses primarily on US law, because that is what is most familiar to me. Some of this will be applicable to other jurisdictions, but you may need to do additional research to figure out exactly what the law is in your particular location.

Under US law, there are several relevant issues to consider:

1. In the past, US courts have occasionally held that a work's creative elements were inextricably intertwined with its useful elements. Such works are not subject to copyright protection, because copyright protection can only cover the creative elements of a work, and not the useful elements. The most well-known example of this rule is typefaces, which cannot be protected by copyright in the US.
2. But there's an exception to the exception. Vector font files (TrueType, OpenType, etc.) contain more information than just the literal shape of the typeface itself - they also use control points to precisely describe the shape and positioning of the Bézier curves that make up the typeface, and courts have held that these control points are a creative element which can be separated from the underlying shape of the typeface. So you can copyright a vector font file, even though you cannot copyright a raster (bitmap) font file.
3. I'm not aware of any specific case law covering website templates. It is possible that a court might decide that a website template is not a "work of art" within the meaning of the statute, but instead a work of industrial design, similar to a typeface. See Eltra Corp. v. Ringer for the specific reasoning used when the Fourth Circuit determined that typefaces were not copyrightable. If a court did make such a determination, that would mean that you could not prevent others from copying the visual appearance or aesthetic of any given template.
4. However, it is very likely that both the PSD file and the HTML file contain elements beyond the literal design itself (e.g. layer information), and those elements are likely subject to copyright protection regardless. So if it is lawful to copy website templates, it likely has to be done the hard way - manually.
5. Any portion of the HTML which is just mechanically created by Photoshop, without significant human input, is probably not subject to copyright at all, except to the extent that it is based on copyrightable elements of the PSD file. This is probably true in most or all jurisdictions, because copyright almost always requires human creation of some kind.
6. The copyright on the (unmodified) HTML will be held by whoever owns the copyright on the PSD file. If the HTML is subsequently modified, then those modifications would create a derivative work, which would be owned by the person who created it. That person would need to comply with whatever copyright license is in effect in order to do this legally.

Answer 2

Copyright extends to all work which requires a certain amount of creative work. A PSD file definitely constitutes this, and that of course extends to the structure inside this file with its layers and additional information. Whether any additional protection may need registration somewhere or not, may depend on jurisdiction - usually no such thing is required: you are the author, you have copyright without further ado.

Generally, the author or creator is not bound by any license. They can choose to grant other people certain rights or permissions in using and re-using their work. This is done usually be choosing a license. And they can even give different people different and conflicting licenses for their work.

You are bound by a license attached to a piece of work when it was produced by another person and you like to use it, distribute or incorporate into your own work. Then you may only do that according to the rights granted to you in the license you were given.

As to licensing a website when you are the author and create it from a PSD file: IMHO it is good practise to release the PSD file as part of the source of the website also under GPL. It is one of the intentions of the GPL to be provided with all the necessary sources in order to recreate the result. If the website can be created from a PSD file by choosing the proper script (e.g. by activating select layers and saving certain parts as images in whatever format) or export options, it would IMHO be good to provide this PSD file along with the instructions how to create the website from it as part of the source.

However, as long as you are the author of the website, and you consider only the exported form as source, then there is no-one who can come to you and require you to release your PSD file under GPL, or any license for what it is worth. Yet iff you release the PSD file at all under an open source license, GPL would be a good option, if the resulting webpage is licensed under GPL, too. If you want to release it more restrictively, that's your prerogative, too.