If WordPress were a country, our Bill of Rights would be the GPL because it protects our core freedoms. We’ve always done our best to keep WordPress.org clean and only promote things that are completely compatible and legal with WordPress’s license. There have been some questions in the community about whether the GPL applies to themes like we’ve always assumed. To help clarify this point, I reached out to the Software Freedom Law Center, the world’s preëminent experts on the GPL, which spent time with WordPress’s code, community, and provided us with an official legal opinion. One sentence summary: PHP in WordPress themes must be GPL, artwork and CSS may be but are not required.
You asked the Software Freedom Law Center to clarify the status of themes as derivative works of WordPress, a content management software package written in PHP and licensed under version 2 of the GNU General Public License.
We examined release candidate 1 of WordPress 2.8, which you provided to us at http://wordpress.org/wordpress-2.8-RC1.tar.gz. The “classic” and “default” themes included in that release candidate comprise various PHP and CSS files along with an optional directory of images. The PHP files contain a mix of HTML markup and PHP calls to
WordPress functions. There is some programmatic logic in the PHP code, including loops and conditionals.
When WordPress is started, it executes various routines that prepare information for use by themes. In normal use, control is then transferred via PHP’s include() function to HTML and PHP templates found in theme package files. The PHP code in those template files relies on the earlier-prepared information to fill the templates for serving to the client.
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 the WordPress themes, CSS files and images exist purely as data to be served by a web server. WordPress itself ignores these files. The CSS and image files are simply read by the server as data and delivered verbatim to the user, avoiding the WordPress instance altogether. The CSS and images could easily be used with a range of HTML documents and read and displayed by a variety of software having no relation to WordPress. As such, these files are separate works from the WordPress code itself.
The PHP elements, taken together, are clearly derivative of WordPress code. The template is loaded via the include() function. Its contents are combined with the WordPress code in memory to be processed by PHP along with (and completely indistinguishable from) the rest of WordPress. The PHP code consists largely of calls to WordPress functions and sparse, minimal logic to control which WordPress functions are accessed and how many times they will be called. They are derivative of WordPress because every part of them is determined by the content of the WordPress functions they call. As works of authorship, they are designed only to be combined with WordPress into a larger work.
HTML elements are intermingled with PHP in the two themes presented. These snippets of HTML interspersed with PHP throughout the theme PHP files together form a work whose form is highly dependent on the PHP and thus derivative of it.
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.
Finally, we note that it might be possible to design a valid WordPress theme that avoids the factors that subject it to WordPress’s copyright, but such a theme would have to forgo almost all the WordPress functionality that makes the software useful.
Software Freedom Law Center
 There is one exception. WordPress does reads CSS and image files to create previews of templates for the template selection portion of the administrative interface. Even in that case, though, nothing in those files calls any WordPress functions, is treated as a command by PHP, or alters any other WordPress data structure. These files are read as data and used to create an image and display a miniaturized version of a webpage to the user.