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`Respondents.
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`
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Tenth Circuit
`
`NO. 21-476
`
`
`IN THE
`Supreme Court of the United States
`
`
`
`
`
`303 CREATIVE LLC, A LIMITED LIABILITY COMPANY;
`LORIE SMITH,
`
`v.
`
`AUBREY ELENIS, ET AL.,
`
`
`Petitioners,
`
`
`
`BRIEF FOR WEBSITE AND GRAPHIC
`DESIGNERS AS AMICI CURIAE
`IN SUPPORT OF NEITHER PARTY
`
`
`
`
`WILLIAM L. ESSER IV
` Counsel of Record
`NICHOLAS H. LEE
`PARKER POE ADAMS &
`BERNSTEIN LLP
`620 S. Tryon Street
`Suite 800
`Charlotte, NC 28202
`(704) 372-9000
`willesser@parkerpoe.com
`
`Counsel for Amici Curiae
`
`
`
`i
`TABLE OF CONTENTS
`
`Page
`INTEREST OF AMICI CURIAE ............................... 1
`SUMMARY OF THE ARGUMENT ........................... 3
`ARGUMENT .............................................................. 4
`I. Websites Are the Expressive Doorways of
`the Modern World. ............................................... 4
`II. Custom Website and Graphic Design Is an
`Artistic and Expressive Activity. ........................ 5
`is materially
`A. A “custom” product
`different
`than a
`“mass-produced”
`product. .......................................................... 5
`B. What is graphic design? ................................ 9
`III. An Overview of the Design Process. ................. 13
`A. From conception to finished design. ........... 13
`B. Transforming non-custom webpages
`into custom works of art. ............................ 19
`IV. Custom Websites and Graphics Are
`Expressive Works That Enjoy First
`Amendment Protection. ..................................... 24
`A. The Constitution protects expression
`with or without words. ................................ 24
`B. Digital expressions are constitutionally
`protected. ..................................................... 26
`C. Custom website and graphic design are
`expressive conduct of the designer. ............ 27
`
`
`
`ii
`D. Copyright Law supports the view that
`website and graphic design constitute
`artistic expression entitled to First
`Amendment protection. ............................... 29
`CONCLUSION ......................................................... 31
`
`
`
`
`
`iii
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`303 Creative LLC v. Elenis,
`6 F.4th 1160 (10th Cir. 2021) .............................. 28
`
`Bleistein v. Donaldson Lithographing
`Co.,
`188 U.S. 239 (1903) ................................................ 8
`
`Brown v. Entertainment Merchants
`Ass’n,
`564 U.S. 786 (2011) .................................. 14, 26, 27
`Cmty. for Creative Non-Violence v. Reid,
`490 U.S. 730 (1989) ........................................ 28, 30
`
`Hurley v. Irish-Am. Gay, Lesbian &
`Bisexual Grp. of Boston,
`515 U.S. 557 (1995) ........................................ 25, 28
`Kaplan v. California,
`413 U.S. 115 (1973) .............................................. 24
`
`Masterpiece Cakeshop, Ltd. v. Colorado
`C.R. Comm’n,
`138 S. Ct. 1719 (2018) 1742-44
`(Thomas, J., concurring in part) ......................... 25
`Miami Herald Pub. Co. v. Tornillo,
`418 U.S. 241 (1974) ........................................ 28, 29
`New York Times Co. v. Sullivan,
`376 U.S. 254 (1964) .............................................. 28
`
`
`
`iv
`Packingham v. North Carolina,
`137 S. Ct. 1730 (2017) .......................................... 27
`Reno v. American Civil Liberties Union,
`521 U.S. 844 (1997) .......................................... 5, 27
`
`Rumsfeld v. F. for Acad. & Institutional
`Rts., Inc.,
`547 U.S. 47 (2006) ................................................ 29
`Schad v. Borough of Mount Ephraim,
`452 U.S. 61 (1981) ................................................ 25
`
`Shurtleff v. City of Boston,
`Massachusetts,
`142 S. Ct. 1583 (2022) .................................... 10, 25
`
`Star Athletica, L.L.C. v. Varsity Brands,
`Inc.,
`137 S. Ct. 1002 (2017) ...................................... 9, 26
`Stromberg v. People of State of Cal.,
`283 U.S. 359 (1931) .............................................. 25
`Texas v. Johnson,
`491 U.S. 397 (1989) .......................................... 9, 10
`
`Tinker v. Des Moines Independent
`Comm. Sch. Dist.,
`393 U.S. 503 (1969) .............................................. 25
`U.S. v. Perry,
`146 U.S. 71 (1892) .................................................. 7
`United States v. Stevens,
`559 U.S. 460 (2010) .............................................. 24
`
`
`
`v
`Walker v. Texas Div., Sons of
`Confederate Veterans, Inc.,
`576 U.S. 200 (2015) .............................................. 26
`Ward v. Rock Against Racism,
`491 U.S. 781 (1989) .............................................. 24
`Winters v. New York,
`333 U.S. 507 (1948) .............................................. 25
`Constitutions and Statutes
`U.S. Const. art. 1, § 8, cl. 8 ................................... 7, 29
`17 U.S.C. § 102(a) ...................................................... 29
`Other Authorities
`Compendium of U.S. Copyright Office
`Practices § 1006 (3d ed. 2014),
`https://perma.cc/2J5M-A5VS ............................... 30
`David Mason, The Supreme Court’s
`Bronze Doors, 63 A.B.A. J. 1395,
`1397 (Oct. 1977) ..................................................... 6
`Merriam-Webster Online Dictionary,
`https://perma.cc/BGB9-ZNVY (last
`updated May 24, 2022) .......................................... 9
`Michael Palumbo, Copyright Protection
`for the Fruits of Digital Labor:
`Finding Originality in Digital Wire-
`Frames, 44 New Eng. L. Rev. 127,
`145 (2009) ............................................................. 16
`
`
`
`vi
`Most Influential Graphic Designer of
`the Past 50 Years, Graphic Design
`USA, https://perma.cc/6URB-E6QZ
`(last visited May 24, 2022) .................................. 10
`
`Most Influential Graphic Designer
`Working Today, Graphic Design
`USA, https://perma.cc/3Q4U-GYJL
`(last visited May 24, 2022) .................................. 10
`Peter Plagens, The Font of Youth,
`Newsweek, Feb. 25, 1996,
`https://perma.cc/8WDZ-6TPL .............................. 10
`Philip B. Meggs & Alston W. Purvis,
`Meggs’ History of Graphic Design
`578 (6th ed. 2016) ................................................ 10
`Webster’s Third New International
`Dictionary (1986) ............................................... 3, 9
`
`
`
`
`
`
`1
`INTEREST OF AMICI CURIAE1
`Amici are a diverse group of custom website and
`graphic designers from around the United States.
`They work with individuals and with companies (both
`for-profit and not-for-profit) to create customized
`websites and graphics that highlight and share a
`message. Sometimes that message is about a
`particular good or service that is being offered (for
`sale or free of charge); other times, the message may
`be simply sharing news or information to educate;
`still others, the message may be to convey or
`stimulate a particular emotion. The custom websites
`and graphics may be shared broadly to the general
`public, or only available to a discrete audience. But
`regardless of how broadly the websites and graphics
`are viewed or what particular message they share,
`each custom website and graphic is a separately
`designed work of art that expresses a message
`through the creative genius of its creator.
`There are many differences among amici. Some
`are solo practitioners operating at a single location
`while others are companies with a significant
`workforce spread across multiple states. Some (like
`David Carson) are known worldwide for their design
`work over many decades, while others have only
`recently started to hone their design skills. Amici
`vary by industry served, as well as by the types of
`design and marketing services provided. They vary
`by race, gender, and religion. Amici also vary by
`
`1 No counsel for a party authored this brief in whole or in part,
`and no person other than amici and their counsel made any
`monetary contribution intended to fund the preparation or
`submission of this brief. Letters of blanket consent to the filing
`of amicus briefs are filed on the docket by counsel for all parties.
`
`
`
`2
`ideology with some happy to create custom websites
`or graphic designs for same-sex weddings (like those
`at issue in this case) while others would choose not to
`do so based upon their sincerely held moral or
`religious convictions.
`Amici do not take any position with regard to
`which party should prevail in this case. Rather, their
`joint interest lies in making a single point – custom
`websites and graphics are expressive works of art
`which reflect the voice of their creators.
`Amici are:
`•
`Joshua Adams, Melbourne, Florida
`• Bop Design, Inc., San Diego, California
`• David Carson
`/
`davidcarsondesign
`(worldwide
`lecturer), New York
`/
`California
`Joseph
`Carter-Brown,
`Maryland
`• Daor Design, LLC, San Antonio, Texas,
`and San Francisco, California
`• Eclarian, LLC, Jenison, Michigan
`• Randy M. Ellis, Chicago, Illinois
`• Fear Not Studios, L.L.C., Avon, Indiana
`• Get Visible Inc., Phoenix, Arizona
`• Spence Hackney, Carolina Beach, North
`Carolina
`•
`Joel Kallman, Michigan
`• Lform Design, LLC, Montclair, New Jersey
`•
`Joe Moss, Michigan
`• Palmetto Mountain
`iVelocity
`d/b/a
`Marketing, Saint Louis, Missouri
`• Proclaim Interactive, Inc., Carolina Beach,
`North Carolina
`
`Catonsville,
`
`•
`
`
`
`3
`• Rock Paper Simple, Melbourne, Florida
`•
`5ivehat Agency, Chicago, Illinois
`
`
`
`SUMMARY OF THE ARGUMENT
`This case is about custom websites and graphics,
`i.e., those “made or performed according to personal
`order.” Custom, Webster’s Third New International
`Dictionary (1986). It is not about mass-produced
`products which stock a shelf or come out of a factory.
`It is not about “drag and drop” software programs
`which allow any person to create their own free
`website without the individualized assistance of a
`designer. People seek out the help of custom
`designers because they want something the designer
`has that is not available through a free website
`software program, namely that person’s artistic
`genius and expression.
`Custom website and graphic design is an art. The
`very words used to describe the process of fashioning
`the custom product – creating / designing – reflect
`that reality. Indeed, the process of designing a
`custom website or graphic is indistinguishable from
`the design process involved in other forms of art, such
`as sculpture, painting, music and poetry. Each art
`form requires the artist to make subjective decisions
`about how to communicate a certain message or
`emotion to an audience, and then translate those
`decisions into a particular medium.
`The Court agreed to hear this case on a single
`question: Whether applying a public accommodation
`law to compel an artist to speak or stay silent violates
`the Free Speech Clause of the First Amendment. For
`
`
`
`4
`amici, the key word in that question is “artist.” Amici
`do not take a position on which party in this case
`should prevail, or what level of scrutiny the Court
`should apply in analyzing First Amendment rights.
`But amici do have a keen interest in ensuring that
`whichever way the Court rules, it clearly recognizes
`and acknowledges that custom website and graphic
`designers are artists whose expressive work is
`entitled to the same treatment and protection under
`the law as other artists.
`ARGUMENT
`I. Websites Are the Expressive Doorways of
`the Modern World.
`The façade of physical buildings, formed with
`tangible materials (stone, metal, brick, mortar and
`concrete), are usually the first thing a visitor to that
`space sees. They convey a powerful message. In the
`case of the design of the Supreme Court Building, the
`massive columns and bronze doors “signify[] the
`importance of the proceedings that occur within.” The
`Bronze Doors: Information Sheet, Office of the
`Curator, Supreme Court of the United States
`(updated Sept. 10, 2021), https://perma.cc/8FDV-
`FX62. Not only is this message conveyed through the
`soaring and majestic columns and the solid materials
`used, it is further emphasized through the bas-reliefs
`on the Court’s bronze doors depicting important
`events in the Western tradition of justice (e.g., the
`acceptance of the common law or signing of the Magna
`Carta). The Court’s information sheet reflects how
`strongly their creator felt about those bronze doors:
`“Out of all our monumental projects, spread over two
`lifetimes, the Supreme Court doors are the only work
`
`
`
`5
`that we ever signed – that’s how important they
`were.” (quote by John Donnelley, Jr., Sculptor) Id.
`In a similar way, websites are the modern doorway
`or entrance for many companies. Unlike physical
`architecture which has limitations on the number of
`people who can travel to and visit it, digital websites
`and graphics are seen and viewed by a practically
`unlimited audience located anywhere in the world.
`See Reno v. American Civil Liberties Union, 521 U.S.
`844, 853 (1997) (recognizing that the internet
`“constitutes a vast platform from which to address
`and hear from a worldwide audience of millions of
`readers, viewers, researchers and buyers.”). That
`large audience increases the importance of how the
`website is designed, including its look, function, and
`the experience of those who encounter it. Just as a
`beautiful cover on a book can lead viewers to open it
`to find out more, so a well-designed webpage can draw
`the viewer in to explore further.
`II. Custom Website and Graphic Design Is an
`Artistic and Expressive Activity.
`A.
` A “custom” product is materially
`different
`than
`a
`“mass-produced”
`product.
`This case requires a distinction between custom
`goods, and non-custom goods, i.e., those which are
`mass-produced and can be purchased off the shelf.
`See Pet.App.181a (noting that “[e]ach website 303
`Creative designs and creates
`is an original,
`customized creation for each client.”). Return, for
`example, to the stately doors of the Supreme Court
`Building. If the Court had wanted a set of doors that
`were simply functional in opening and closing, it could
`
`
`
`6
`have obtained any standard doors from a door supply
`company. Instead, the Court wanted something
`unique and expressive.
` The Court Building
`Commission, in consultation with architect Cass
`Gilbert and sculptor John Donnelly, “decided that the
`building should have monumental bronze doors with
`sculptured panels depicting important events in the
`development of the law.” David Mason, The Supreme
`Court’s Bronze Doors, 63 A.B.A. J. 1395, 1397 (Oct.
`1977).
` While the Commission “suggested the
`important events to be depicted in the door’s panels,
`the actual creation of the scenes to illustrate these
`events was left primarily to Cass Gilbert and John
`Donnelly.” Id.
`Armed with that starting concept, the designer
`and sculptor put their creative genius to work. Their
`process started with research at the New York Public
`Library about the historical events to incorporate in
`the reliefs. Id. at 1398. They then moved to the
`numerous artistic decisions involved in the design,
`such as how to configure the reliefs, what figures to
`show, how the figures would stand, the size of the
`figures, the angle of the figures’ bodies, the clothing of
`the figures, the background scenes / buildings to show
`behind the figures, the type of decorative borders
`surrounding each scene, the type of floral patterns
`used to highlight the edging, and the type of columns
`on either side of the reliefs. The sculptor then took
`those designs and translated them into physical
`reality through “actual clay models and subsequently
`the plaster molds from which the bronze panels were
`to be cast.” Id.
`The beauty and expressive content of the finished
`doors is unquestionable. “Through the perception of
`
`
`
`7
`Cass Gilbert, John Donnelly, and their advisers,
`together with the unique patience, fortitude, and total
`artistic skill of John Donnelly, Jr., we have in these
`eight sculptured panels a unique, thoughtful, and
`visible record of the development of the law from the
`earliest times, indicating that the origins and
`development of the law lie in discussion and debate
`on important questions by educated laymen, judges,
`advocates, and scholars.” Id. at 1399. The fact that
`the doors also serve a functional purpose does not
`make them any less works of art. See generally U.S.
`v. Perry, 146 U.S. 71, 74-75 (1892) (recognizing that
`“works of art” include “objects primarily designed for
`a useful purpose, but made ornamental to please the
`eye and gratify the taste”); U.S. Const. art. 1, § 8, cl.
`8 (granting to Congress the power to promote the
`“useful Arts”).
`In a similar way, a person interested in obtaining
`their own website can choose from either non-custom
`or custom options. A non-custom website is one
`typically created through a process called “drag and
`drop” or “pick and plug.” It typically involves an
`online software program that provides basic layout
`choices and allows a person to insert their own text or
`pictures in pre-selected locations on a page. Such
`programs do not require any particularized skill or
`training and allow anyone to set up a very basic
`website in short order and at no (or very limited)
`expense.
`Take the example of a couple who desire a website
`for their wedding. Free non-custom options abound.
`A starting place could be the website theknot.com
`which advertises a “Free Wedding Website Made for
`You.” There, interested parties can select from one of
`
`
`
`8
`numerous pre-made design layouts, insert their photo
`and text and Voila! – their new non-custom website is
`up and running. Or if they do not like the free designs
`and layouts offered on The Knot, numerous other drag
`and drop wedding website layouts are available from
`competitors (e.g., withjoy.com, minted.com, zola.com,
`weddingwire.com, wix.com).
`But some people do not want an off-the-shelf
`website. They want something special and unique,
`something that is tailored specifically to them and
`their needs. They want the unique expression that a
`custom designer offers. Pet.App.182a (the designs by
`Lorie Smith are created by “drawing on her
`inspiration and sense of beauty”). See also Bleistein
`v. Donaldson Lithographing Co., 188 U.S. 239, 250
`(1903) (recognizing that a poster design embodies “the
`personal reaction of an individual upon nature.
`Personality always contains something unique. It
`expresses its singularity . . . which is one man’s
`alone.”)
`By highlighting this distinction between mass-
`produced and custom goods, amici do not mean to
`suggest that mass-produced goods cannot be artistic
`or expressive. Rather, the key distinction between
`the two involves the creator’s relationship to the
`message. With a mass-produced good, the creator has
`essentially handed over their tools (paint, brush,
`easel) to the public, who can use that good to express
`any message they wish. The creator is only minimally
`involved in the final message, just as a paint supplier
`is only minimally involved in an artist’s painting. For
`a custom work, however, the designer is the one doing
`the creating and is therefore an integral part of the
`message. See Pet.App.182a-183a (stipulation that
`
`
`
`9
`Lorie Smith works closely with clients in her design
`work to “express a message in a way that is pleasing
`to both Ms. Smith and her clients” but “Ms. Smith
`ultimately has the final say over what she does and
`does not create”).
`B. What is graphic design?
`“Design” refers to “the arrangement of elements
`that make up a work of art.” Design, Webster’s Third
`New International Dictionary (1986); see e.g., Star
`Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct.
`1002, 1009 (2017) (“Design refers here to the
`combination of details or features that go to make up
`the useful article”) (cleaned up). “Graphic design”
`specifically focuses upon visual elements, i.e., those
`that can be experienced with sight (rather than the
`other senses). See Graphic Design, Merriam-Webster
`Online Dictionary, https://perma.cc/BGB9-ZNVY
`(last updated May 24, 2022) (defining graphic design
`as “the art or profession of using design elements
`(such as
`typography and
`images)
`to convey
`information or create an effect”); Star Athletica, 137
`S. Ct. at 1009 (“graphic” means “of or pertaining to
`drawing or painting”). Those visual elements include
`the ones stipulated to by the parties in this case: color
`schemes, fonts, font sizes, positioning, harmony,
`balance, proportion, scale, space, angle,
`light,
`complexity, and simplicity. Pet.App.182a.
`Graphics are inherently expressive. As symbols,
`they are a
`“primitive but effective way of
`communicating ideas.” Texas v. Johnson, 491 U.S.
`397, 405 (1989) (quoting West Virginia State Board of
`Education v. Barnette, 319 U.S. 624, 632 (1943)). For
`instance, using “an emblem . . . to symbolize some
`
`
`
`10
`system, idea, institution or personality, is a short cut
`from mind to mind. Causes and nations, political
`parties, lodges and ecclesiastical groups seek to knit
`the loyalty of their followings to a flag or banner, a
`color or design.” Id. See also Shurtleff v. City of
`Boston, Massachusetts, 142 S. Ct. 1583, 1590 (2022)
`(recognizing the expressive nature of a symbolic
`“piece of cloth” - a flag – based upon its content,
`presence and position).
`Some of the most well-known graphic designs are
`brands or logos. No words are needed for viewers to
`understand the expressive nature of these symbols or
`which companies and goods they represent:
`
`
`
`
`
`
`Other graphics, like the new logo created by world-
`renowned designer David Carson2 for Shift Clean
`
`2 Amicus David Carson has been a world leader in graphic
`design for decades. He has been listed as the third Most
`Influential Graphic Designer Working Today, Graphic Design
`USA, https://perma.cc/3Q4U-GYJL (last visited May 24, 2022),
`and the sixth Most Influential Graphic Designer of the Past 50
`Years, Graphic Design USA, https://perma.cc/6URB-E6QZ (last
`visited May 24, 2022), while Newsweek magazine said he
`“changed the public face of graphic design,” Peter Plagens, The
`Font of Youth, Newsweek, Feb. 25, 1996, https://perma.cc/8WDZ-
`6TPL. His work is included in the “bible” of graphic design
`history, Philip B. Meggs & Alston W. Purvis, Meggs’ History of
`
`
`
`
`11
`Energy (a company focused on battery-powered
`solutions for marine fleets) incorporate text of varying
`sizes and colors, spacing and a + symbol representing
`a battery’s positive terminal.
`
`
`Graphic designs exist in multiple mediums,
`ranging from the traditional print mediums of books,
`magazines and newspapers to the more recent digital
`medium of computers and the internet. Examples of
`non-digital graphics (each designed by David Carson)
`include:
`
`
`Graphic Design 578, 653-54 (6th ed. 2016), and the permanent
`collection of the London Museum of Design (among others).
`
`
`
`12
`Cover art for a boxed set of John Coltrane recordings:
`
`
`
`
`
`
`
`A
`whiskey
`bottle
`label
`and
`box.
`
`
`
`
`
`13
`
`
` A map of the USA for Amtrak on-board magazine:
`
`
`Website design is a subset of graphic design that
`exists solely in a digital medium. The digital format
`allows designers to incorporate some additional
`design elements not always present in a physical
`medium, such as movement, navigability and
`interactivity. Pet.App.182a. The digital medium also
`permits incorporation of audio design elements, with
`the use of sounds and videos.
`III. An Overview of the Design Process.
`A. From conception to finished design.
`Custom website designers approach a design
`project in much the same way as artists practicing in
`more traditional, non-digital mediums. For instance,
`recall the process for the designer and sculptor of the
`Supreme Court doors. They first met with the
`Building Commission, then conducted research, then
`
`
`
`14
`designed, developed and cast the doors, and finally
`installed the finished product. Website designers are
`no different.
`In the stipulated facts of this case, the parties
`describe how 303 Creative / Lorie Smith approaches a
`website or graphic design project. Pet.App.181a-185a
`Lorie’s process is familiar to amici who each engage
`in a similar (if not entirely identical) process.3 The
`following graphic (by Lform Design) reflects the
`general stages in that process:
`
`
`First, the designer meets with a potential
`customer to determine the customer’s needs and
`whether the designer’s particular skill set is a good
`match for what the customer desires. Pet.App.185a
`(Lorie Smith conducts a “vetting process” to
`determine whether a potential customer is “a good fit
`given Plaintiffs’ skills, schedule, preferences, and
`workload.”). For instance, some designers develop
`niche practices creating websites for a particular
`industry, such as dental practices, non-profits,
`
`
`3 While this process is familiar to amici, they note that the
`Court has not previously addressed a case specifically dealing
`with website design. Thus amici believe it is important to
`describe that process in detail to assist the Court. See generally
`Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 806
`(2011) (Alito, J. and Roberts, C.J. concurring) (in applying First
`Amendment protections to “new and rapidly evolving technology
`. . . we should make every effort to understand the new
`technology.”) (cleaned up)
`
`
`
`15
`schools, or law firms. Others develop a specialty in
`websites used by a particular market segment. For
`example, B2B (Business to Business) designers
`specialize in websites geared toward a business
`audience, rather than retail consumers. Others focus
`their design skills upon UX (User Experience). If the
`skill set of the custom designer is not a good fit for the
`project (or the potential customer is unwilling to pay
`the price for that designer’s artistry), the designer will
`refer the customer to someone else. Pet.App.185a
`Second, assuming the skill set matches, the
`designer will then engage in research to better
`understand the who, when, where, why and how of
`the project. That research starts with learning more
`about the customer (What’s unique about you or your
`company? To whom is the website targeted? What do
`you want a website to accomplish for you? If a website
`is for marketing, how does it fit into your broader
`marketing strategy? Do you want a logo or other
`custom graphics designed as part of the project? Do
`you already have a particular look, feel, or color pallet
`that you have used in the past and want to
`incorporate?). Research may also include competitor
`analysis (What are similar people doing with their
`websites?) and statistics review.
`The third step of the process is the design process
`itself. This is where the expression and artistic
`genius of the designer
`fully manifests
`itself.
`Pet.App.182a (“Although clients often have a very
`basic idea of what they wish for in a graphic or a
`website and sometimes offer specific suggestions, Ms.
`Smith’s creative skills transform her client’s nascent
`ideas into pleasing, compelling, marketable graphics
`or websites conveying a message.”).
`
`
`
`16
`Starting with an essentially blank screen, the
`designer creates “wire-frames” and “style scapes” /
`mood boards.
`(i) Wire-frames. “Wire-framing refers to the
`process by which a three-dimensional digital object is
`given structure. . . . The structure works like a
`skeleton. A digital artist must create each bone of the
`skeleton.” Michael Palumbo, Copyright Protection for
`the Fruits of Digital Labor: Finding Originality in
`Digital Wire-Frames, 44 New Eng. L. Rev. 127, 145
`(2009). While a wire-frame may look like a finished
`digital image, “it does not have texture or ‘skin,’ that
`is, the appearance of texture or color.” Id. Here are
`several examples of wire-frames:
`
`
`
`
`
`17
`
`
`In each, you can see that the focus is clearly upon
`layout, with no concern at this stage for color, text or
`tone. The wire-frame provides the building block
`structure on which the rest of the website and
`graphics are built.
`(ii) Style scapes / Mood Boards. If a wire-frame is
`the interior skeleton of the design, style scapes
`(sometimes called “mood boards”) are focused on the
`exterior – colors, font type, font size, images, language
`tone – the skin, “feel” or “mood” of the website. Here
`is an example created by Lform Design:
`
`
`Note how the designer has selected artistic features
`that express the seriousness and substance of this
`industrial equipment supplier – darker colors, sturdy
`
`
`
`18
`thick style fonts, straight lines, and solid rectangular
`imagery.
`After obtaining customer feedback on the wire-
`frames and style scapes, the designer then moves to
`the fourth (and often most time-intensive) stage –
`development. Development involves creating drafts
`of the various webpages based upon the selected
`layouts and style. The designer will typically create
`a “sitemap,” which visually depicts how the various
`webpages will link and interact with each other (or
`with other third-party websites). For large projects,
`there may be dozens of webpages to create and link
`together. Then the designer will add additional
`features such as the website menu (similar to the
`index of a book), and interactive features (e.g., pop-up
`boxes, animations, infographics). Some of these
`features may require the designer to create their own
`coding (i.e., computer programming). The designer
`may also create one portion of the website which is
`accessible to the public and another which is designed
`solely for internal use by employees of the company
`(each with their own particular feel and style).
`In the fifth stage, the designer adds content (text,
`graphics, audio, video) to the webpages. That content
`may come from the client or may be new items created
`by the designer, such as a logo, photographs, and
`charts. Like 303 Creative, many website designers
`add their personal signature to the webpages they
`create. See Pet.App.187a (all of 303 Creative wedding
`websites will say “Designed by 303Creative.com”).
`These signatures proclaim to the public who the artist
`is and help to attract future clientele.
`
`
`
`19
`Finally, once the content has been fully added, the
`designer tests the website to ensure that all elements
`are fully functioning and, if so, the new website is
`then launched (i.e., made “accessible” to the public).
`Typically, since websites are interactive, the designer
`will remain engaged to provide support and updates
`for the client over an extended period.4
`B. Transforming non-custom webpages
`into custom works of art.
`This general website design process is used for
`both new websites as well as redesigns of existing
`websites. It fills a need for people who are no longer
`satisfied with a non-custom drag and drop site, but
`want a custom, artistic presence. For instance, Bop
`Design was tasked with helping a nonprofit
`consulting firm on a website redesign project.
`
`
`4 The activities performed in each stage of the website design
`process are often categorized differently by designer. For
`instance, Bop Design uses the following six categories: (1)
`Discovery; (2) Concept; (3) Content; (4) Design; (5) Develop; and
`(6) Launch. Regardless of the titles used, the general steps taken
`in the design process are similar for each website designer,
`starting with meetings and research at the beginning, design
`and development in the middle and website launch at the end.
`
`
`
`20
` Here is the former website homepage:
`
`
`This website has stiff lines, lots of text, and nothing
`that stands out. Now compare the redesign:
`
`
`The difference is dramatic. The new webpage has a
`central point of focus – the elegant dancer who evokes
`an image of the arts organizations which this
`consultant targeted. The amount of text is greatly
`reduced and design elements added (e.g., the blocks of
`varying shapes and colors imposed over the dancer).
`
`
`
`21
`The main words on the page are increased in size and
`placed against a black background for maximum
`impact. The dancer’s skirt is faded out as it meets the
`text, thus drawing the picture and the text into a
`harmonious balance. This new webpage expresses
`elegance, refinement and culture, even without any
`reference to the text on the page.
`Or compare these before and after images of the
`webpage for an accounting firm (also by Bop Design):
`Before:
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