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"According to WordPress' intent stated here: http://wordpress.org/news/2009/07/themes-are-gpl-too/ the themes are being considered a derivative work. I'm not a lawyer and honestly not a huge fan of the GPL, but this seems pretty clear-cut to me."

I don't see how they can automatically assume that all themes are under the GPL license. If you make a theme that does not use any existing wordpress code, it wouldn't be considered a derivative work.

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FTA:

"The PHP elements, taken together, are clearly derivative of WordPress code.... 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."

"If you make a theme that does not use any existing wordpress code, it wouldn't be considered a derivative work."

I personally would consider that to be impossible, however, you are basically correct.

In this specific case though, that does not apply. Thesis makes heavy use of WordPress code.

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