How can I legally publish game screenshots in a book?

May 4, 2006 9:54 AM

I'm considering writing a book about game systems in the 80's and would like to be able to include screenshots of many of the games. What do I need to do to be able to include those screenshots without being sued? Does this fall under the copyright law's "fair use"? Does the fact that they are older games make any difference? Apologies if this has been asked before - I couldn't find anything related to publishing game screenshots.
posted by aceyprime to law & government (9 comments total)

These would not fall under fair use if you were to use them in a book that was published and sold to consumers. You would need to get permission from the original game manufacturer to use the images. I checked one of our publisher's contract files for a book on video games from the 80s and 90s and the author cleared permissions for all images for a two year period.

I know Supercade has a lot of screenshots so it might be helpful to check how they credited the images used or as a source for what company owns what material.
posted by rodz at 10:23 AM on May 4, 2006

I don't agree with rodz. Excerpts of a work may be used in reviews under the "fair use" exception. I don't think you have to ask anyone's permission.

A publisher might well do so anyway, just to cover themselves, but it isn't required.
posted by Steven C. Den Beste at 10:37 AM on May 4, 2006

You would be remiss not to seek permission. Sure, it may not be *necessary* but it's certainly advisable. That way all of your bases are covered. And perhaps the company can provide you with high res quality images instead of just screen shots.
posted by misanthropicsarah at 10:45 AM on May 4, 2006

Rodz's answer isn't completely off -- the commercial nature of the work which publishes excerpts from an earlier work is taken into account when determining whether or not the fair use defense can be applied -- but it's not absolute like he suggests. Commercial uses can be fair uses. The criteria used to evaluate a fair use defense are listed in the Wikipedia article on fair use.

But fair use doesn't prevent you from being sued -- it just prevents the suit from succeeding. That's why it's a defense! It'll be up to the author and their publisher to decide whether or not it will be in their interests to get clearance on the screenshots even though they might win a copyright-infringement case. If the copyright owner wants to sue they can, and when you win you're still out legal fees and lost time (and lost sales, if they can get a temporary injunction).

Is publishing screenshots from games fair use? I think it's clear-cut fair use. But the only opinion that matters in the end is that of the presiding judge.

Watch out for trademark issues, too. Some of those screenshots probably display game companies' trademarks.
posted by mendel at 10:48 AM on May 4, 2006

To get the trite part of the answer out of the way, you should consult a lawyer on this. You need an answer to this question that you can rely on and that is specific to your jurisdiction.

My view (which is not legal advice, just an off-the-cuff opinion) is that this would be considered a fair use. Some points in your favor:

1. Although it's a commercial use, you probably aren't competing with the videogame manufacturers, unless they are publishing similar books (which I assume they aren't).

2. If the games are old, there isn't much of a market for them anyway, let alone a market for screenshots.

3. I believe some courts have held that video game screenshots represent such a small fraction of the copyrighted work that this weighs in favor of fair use.

In a perfect world, you would get permission from all the manufacturers, but in reality, that will probably be a huge hassle, given that there are probably a lot of them and it may not be clear who currently owns the copyrights in some cases (e.g. if a company went out of business and sold its assets to someone else).

Returning to my initial point, although a lawyer will cost you money, he/she will save you worries and hassle in the long run. You don't want to put all this work into the book and then get hit with a restraining order without the benefit of prior and ongoing legal advice.

The book sounds interesting, by the way. Good luck if you pursue it.
posted by brain_drain at 11:03 AM on May 4, 2006

I am something of a hard-liner on this, but the only way this wouldn't be fair use is if you were publishing frame-by-frame screengrabs of entire walkthroughs of video games. Furthermore, your book sounds like either a work of "fair and reasonable criticism" (Folsom v. Marsh, 9 F.Cas. 342 (1841)) or something similarly fair use. I don't think there's any reasonable argument against this being fair use.

Asking permission would be bad precedent, a colossal pain in the ass, and would perpetuate the horrible hyperparanoiac system whereby creative people are forced to spend the bulk of their time and budget on pointless clearances. That said, you could see what other video game books have done, like this and this.

And you could also read the Documentary Filmmakers' Statement of Best Practices in Fair Use [PDF] which is of course about film, but is a good touchstone for Fair Use: if some bored jackass decided to sue you, you would have some recourse to say that there is a large group of journalists/historians/filmmakers who consider your use Fair.

Yes, by the time you have a publisher, someone will talk to a lawyer. And if that lawyer says you need to get clearances, get a different lawyer. But at this stage, of "thinking about writing", you need to be firm and resolute and assert your right to use this material.
posted by xueexueg at 11:36 AM on May 4, 2006

I would go with what rodz said, since he works for a book publisher and actually deals with these issues.
posted by jjg at 12:52 PM on May 4, 2006

I wouldn't count on having to fuss over such a thing. All you're doing is taking a screenshot of the game, you're not republishing the game -- there is nothing the "artist" could lose from this. It's the same concept of quoting a source in a newspaper in quotes, it's not republishing some entire novel, it's making a reference to a source. I think as long as at least credit is given for each image (perhaps in a credits section in the back) you're OK. Besides -- if you took the screenshots, you would own the picture having been taken by you. Is it not the same as taking a picture of a bunch of books on a shelf? Do you have to get permission from each publisher of each book in order to publish a photo? Certainly not. You're not republishing the books, you've only taken a shot of the cover itself.
posted by vanoakenfold at 4:28 AM on May 5, 2006

This recent (May 9, 2006) court decision is very relevant to your question: Graham v. Dorling Kindersley Limited. The publishers of a book about Grateful Dead history (DK) printed reduced reproductions of several concert posters without permission from the copyright holder (Graham).

The court found that this was fair use.

FWIW my bugaboo about "bad precedent" and stuff is pretty bunk; DK had asked Graham for permission, but the two parties "disagreed as to an appropriate license fee" and DK went ahead anyway.
posted by xueexueg at 10:34 AM on May 18, 2006