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It's interesting that the structure of Wordpress affects whether the themes are derivative works. Maybe it's the PHP-soup style of HTML interspersed with PHP function calls that creates the situation you describe. The same system written so that the themes are stored as lists of colors and dimensions to be interpreted by the blog software would keep the themes as non-derivative works.

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Definitely. XSLT is something that could work this way -- the blogging software generates an XML document with all the relevant information, and then the XML stylesheet is applied to make the XHTML (or Atom, etc.) result. Additional CSS and Javascript could of course be bundled.

In this case, there would be no question as to the legal status of the theme. It's just a program that transforms the output of another.

The existence of "hooks" further complicates things. WordPress themes are essentially collections of event handler scripts, and those scripts can register callbacks such that when core WordPress functions are called, those callbacks are executed. So, you have WordPress calling the theme calling WordPress calling the theme...

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