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Ask the Law Geek: Is publishing screenshots Fair Use?


by Stewart Rutledge

A friend of mine recently emailed me a plea for help from the manager of Guitar Tab Universe. His site is being threatened with a lawsuit by the Music Publisher's Association for alleged copyright infringement in sharing tablature. His response, a very common response in many "sharing" contexts, was, "Hey, we're peaceful people, and this is just fair use!"

As I've said before, fair use is the battle cry for sharers everywhere, but it's only as fair as the courts say it is.

Since fair use has become such a buzzword in the copyright battles, it has begun to lose its actual meaning. People throw it around like legal kryptonite, but, just like any legal doctrine, the fair use doctrine only has as much legal power as the courts have given it. It definitely has power, though, and this article discusses its actual meaning and usage.

A reader recently asked me...

Q: Is taking a screenshot of a public web site (like Google or Flickr) and posting it to your weblog or in a presentation considered copyright violation, or does it fall under Fair Use?

The (in)famous fair use doctrine requires a non-rigid application of copyright law, and application of the doctrine requires a case-by-case analysis. Courts have repeatedly refused to set bright-line rules regarding what is and what is not fair use.

Generally, four factors must be considered in context, as a whole to determine whether a reproduction is fair use or unfair use, i.e. copyright infringement. The four factors of fair use are:

  1. The purpose and character of the use: Reproduction for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not copyright infringement. This probably covers most blogs and personal websites, but there are other factors to consider.

  2. The nature of the copyrighted work: The Supreme Court has said that this factor is often "not much help," but the nature of the original could become more important when dealing with digital works that may be reproduced not one time, but one million times, in a fraction of the time.

  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole: If the original is 10,000 pages, and the culprit reproduces one page, that is probably not infringement. But, if the original is one page, and the culprit still reproduces one page, he has probably infringed on the copyright.

  4. The effect of the use upon the potential market for or value of the copyrighted work: This one gets fun. The Supreme Court has rejected an irrebuttable presumption that commercial reproduction eliminates the fair use defense, but reproduction for a commercial purpose may push the secondary use closer to infringement and farther away from fair use. This factor requires the court to consider the relevant market and the competitive atmosphere while simultaneously trying to increase the welfare of Americans, two often competing interests. For instance, although a corporation may limit many forms of unauthorized reproduction of its software, the FCC has stated that truthful, non-deceptive comparative advertising is both legal and important to a healthy marketplace.

    As is true in most intellectual property, courts seek to strike a balance between the rights and incentives of the rights holders and the welfare and benefit of the general public.

So, can you post a screenshot of a website on your blog? Probably so, but feel free to run through the four factors to make sure. Oftentimes in internet use, the specific allowances under the first factor are dispositive (as is the case here), but the closer a site gets to commercial benefit from another person's creativity, the thinner the ice gets.

Take a wild guess which company instigated the fight that resulted in the current law regarding fair use and screen shots... none other than the Founding Father of Fair Use, Sony Corporation of Japan America. In the 80s, Sony was all about fair use as a defense to its controversial Betamax machines, but fast forward about twenty years, and Sony and fair use had an ugly divorce when Sony decried two-man company Bleem's claim of fair use when Bleem put side-by-side screenshots of Sony-copyrighted Playstation games on its advertising materials to demonstrate the Bleem emulator's superior rendering ability via a PC. Result?

Round One, 1984: Sony won. Fair use is fair enough for Sony Betamax.

Round Two, in the year 2000: Sony loses. Fair use is still fair enough for Bleem to use screenshots of Sony's copyrighted games. Talk about trying to have your cake and eat it too.

Ironically, Sony went to court over Betamax and its DAT-corders, and won both times. But, when it went to court over its Playstation, it lost. Conversely, Betamax and DAT tanked in the market while the Playstation, well, became the Playstation. Sony's trips to court seem to be about like getting your girlfriend's name tattooed on your arm. You may mean well and all defending your girl, but you might as well just break up with your girlfriend first, give the tatoo guy $400 and ask him to punch you in the face. The courts have no problem doing that for Sony, but at least we got some solid law out of it.

Google can't hide this one under the mattress...

After twenty years of fighting, you'd think we're safe using sampled copyrighted materials online, but think again. Right now, a certain online gentleman's magazine is suing Google for displaying thumbnails of its copyrighted photographs in the Google Images search. The case is yet to be decided, but so far Google has been ordered to remove certain links displaying the pornographer's copyrighted content. EFF and bunch of libraries are fighting for Google's right to display these images on similar grounds as above, but this case could be a watershed moment for copyright law on the internet.

So, once again, brick and mortar law is meeting the internet, and the courts are struggling to reshape law to fit this wholly new medium. Most new technological developments arrive hand in hand with complementary legal controversies, and the digital age has created a flood of issues of first impression.

Just imagine a seventy-year-old judge, who may not even own a computer, presiding over a case between the leading search engine and a major online pornographer. Although it may seem like asking John Daly to judge a figure skating contest, our judicial system has faced worse, and they'll probably figure this one out too.

And, as Justice Oliver Wendell Holmes famously said, "The life of the law has not been logic; it has been experience." Experience has always provided law, and it has already begun to do so in this modern age. It's up to democracy (you, the people) to judge that law.

As Levar Burton once told me, "Don't take my word for it." Remember that this column is not intended as legal advice; it's only opinion. These statements are nothing more than opinions of the author who is a law student but is not a lawyer. Don't make any legal decisions based on this opinion article. If you're afraid of getting sued, save up your money and talk to a real lawyer.

Got any questions or comments about Fair Use? Post 'em up in the comments or send us an email to tips at lifehacker.com.

Stewart Rutledge is in his final year of law school at the University of Mississippi. He's taken classes in intellectual property, cyberlaw, and international intellectual property. Stewart has no intentions of being a corporate lawyer and is open to job offers.