What’s the probability that your screenshots aren’t an Infringement on Copyright?
Maybe ½. Remember Probability in math? Alright. In a class of 10, 5 students took screenshots of website pages, 2 of movies, 1 of a video game and another of a blog post. What is the probability that a screenshot picked at random does not violate copyright? Easy peasy, but I won’t answer it (winks). And not to worry, we aren’t having a math test. Let’s delve into screenshots (also called screen grabs) and copyright for a bit.
Screenshots are so common and so helpful. Still, imagine getting sued for the last one you took on your device. Anyway, let’s paint a scenario: Williams is a photographer and he has just posted a picture he took. An admirer of his work screenshots the picture and posts it on social media. He should probably be happy his work is gaining traction right? He is (well, consider also that he might be a big time photographer that makes big bucks from every shot) . Plus, don’t forget he has a copyright over that picture. So you can’t always assume that a copyright holder would not object to your use of a screenshot. That goes for various contents we find on the Internet, not just pictures. But before you think this whole copyright thing is getting extreme, it isn’t that deep.
On the use of screenshots, as with various other uses of copyrighted materials, there is a thin line between copyright Infringement and fair use. That’s right, the doctrine of fair use is what saves most of us, but it is so far-reaching that it has been described as “one of the most unsettling areas of law”. Thus, there is no one-size-fits-all kind of principle on this, Courts have to decide each case on its own merit. Whether or not one’s use of a screenshot is an Infringement depends on how much it can come under the umbrella of fair use. Fair dealing, same as fair use, is recognized as an exception to Infringement in section 5 of the Copyright Act. The exceptions that come under Fair Use are set out in the 2nd schedule of the Act. Unfortunately, the Act does not define fair dealing, nor does it set out guidelines to determine what fair dealing is.
There are four factors to consider in order to determine fair use, as provided by section 107 of the Copyright Act of the U.S:
1)Purpose and character of use;
2)The nature of copyrighted work;
3)The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4)The effect of the use upon potential market for or value of the copyrighted work
For the first factor, if the purpose for reproducing the copyrighted work — in this case, as a screenshot — is for education, research, news reporting, scholarship, criticism and comment, it would pass. This probably covers most blogs, news outlets, personal websites, school materials. As to the nature of copyrighted work, it’s pertinent to consider how original and creative the work is. If the work leans towards being more factual than creative, fair use might avail. On the third factor, there is no defined rule as to the maximum content of a work that can be copied. If a work is 2,000 pages, and one reproduces a paragraph, it’s probably not an Infringement. If the work is just a paragraph and it is reproduced in its entirety, that’s more likely to be an Infringement. For screenshots, highlighting a part of the whole or transforming it would probably pass as fair use. The fourth factor, which is probably the most important, has to do with money! If you’re making money from or using the screenshot commercially, the umbrella of fair use will more readily be blown away. If you’re affecting the revenue or in any way tampering with the pecuniary interests of the rights holder, a defense of fair use will most likely not avail you. So, for instance, if you’re not affecting Williams’ money, he might not come after you.
Don’t get too comfortable though! Because the content of a screenshot is copyrighted, making a screenshot of it means reproducing it. Again, remember, copyright gives the holder exclusive rights to authorize its publication, distribution, usage, reproduction, performance and preparation of derivative works from the original. So, technically, making a screenshot would probably amount to an Infringement regardless of what it’s used for. Way out? Ask for permission… where you can. Some sites put up contact information for getting such permission. Others tell you the extent to which you can go with the copyrighted material. For instance, Oracle’s official website specifies the limits to the use of screenshots derived from their content/work.
Now you know that if you’re making a screenshot of any content – say movie, picture, game, write up, website, anything at all – for personal use without sharing it, generally, no one will come after you. Also sharing it in such a manner that does not affect the revenue (most importantly) of the Copyright owner will probably not attract raised eyebrows, takedowns or a law suit. Nevertheless, the act of taking a screenshot at all, can by all means be deemed an Infringement. Using screenshots for commercial purposes without due permission will definitely leave a whole lot of suits in your trail, with the doctrine of fair use proving to be a feeble defense in that regard.
Quick question. Where do you think a tailor who screenshots outfit styles, sews them and makes money from it falls?
About the Author
Ibukun Adisa-Simon is a 200 level Law student interested in creative arts and intellectual property law. She also has keen interest in climate change issues and the Sustainable Development Goals. Ibukun can be reached on LinkedIn via https://www.linkedin.com/in/ibukunoluwa-adisa-simon-93a190184