Copyright in screenshots? Who owns it?

January 23, 2007 7:53 PM

Can anyone explain, in some detail, precisely *how* the taking and use of a screenshot of a program running on a computer can infringe the copyrights or trademarks of others?

There's a foofaraw going on just now on one of the Wikipedia mailing lists about the fact that Wikimedia Commons has what I, personally, feel is *entirely* too strict a policy concerning screenshots (where, by too strict, I mean that in the example of a screenshot of a website in a browser, they're concerned with infringing on the copyright not only of the website and it's designers and copywriters -- which I could just barely understand -- but also the trademark of the browser creator (for its logo) and the copyright of the creator of the desktop manager design -- Apple's Aqua, by example).

My assertion is that if I create a screenshot, *I* own a copyright in it, and that any infringement could only be by defining it as a derivative work. I thought I understood "derivative work", but they're trying really hard to convince me I'm out of my mind.

To be clear, they don't require that the program be a browser: they're just as happy to claim these infringements about screenshots of other types of running programs.

Certainly any of those party's lawers could convince them to sue, whether they have clear and reasonable grounds or not, and they have more money than you do -- though WMF certainly has a legal budget these days after a $1.5MUS pledge drive last month.

So, in the real world, can a screenshot -- given that screenshots are almost uniformly made either for identification, illustration, or educational purposes -- *actually* infringe any of those things?

(Extra points for case law; I'll be happy to look up the citations myself.)

I know we have some lawyers, I know this won't be legal advice, I also know it's federal jurisdiction, so the usual "I'm in another state" reply will matter less. Any thoughts?

posted by baylink to Law & Government (19 answers total)

I don't think that the folks at Wikipedia are actually interested in the details of "Fair Use" case law, and I think that citing such to them would be a waste of your time. I think they want to avoid even being threatened, because defending (even successfully) against a suit can be very expensive and they'd rather use their money for other things.

The unwritten law when it comes to this kind of thing is the "Golden Rule": he who has the gold makes the rules. Wikipedia doesn't have very much gold, and doesn't want to have to deal with anyone pugnacious and rich (e.g. Steve Jobs) who might take offense even if Wikipedia would certainly prevail in the resulting suit.
posted by Steven C. Den Beste at 8:03 PM on January 23, 2007

I'm no lawyer, but the first thing that came to mind upon reading your post was computers in film ot TV. We always see a recreated internet browser or word processing application when viewing a computer screen in a movie.

I wonder if taking a screenshot (of Firefox for example) and posting it on the internet for millions to view is regarded the same as filming Microsoft Word with a 35mm camera and displaying it on a cinema screen, for millions to view.

In the case of the cinema, you most definately require permission from the copyright holder.

I would think the law remains the same for the internet, which just happens to be a different medium, but is still seen by millions.

As I said, I'm just a layman but the parallel seems logical to me:

Creating a screenshot and claiming copyright ownership, is no different from photographing someone elses work and claiming copyright ownership of that...
posted by rocco at 8:10 PM on January 23, 2007

SCDB makes some very cogent points. I'd also note that, at least with regards to the WikiMedia Commons project, your assertion that the screenshots will be used for identification, illustration, or educational uses is most certainly not true. The WikiMedia Commons only accepts material that can be used by anyone, for any purpose and as such specifically rejects material that is only available for commercial use under fair use provisions.
posted by RichardP at 8:12 PM on January 23, 2007

There is a difference between something being allowable by fair use and not being copyrighted by someone else.

The Wikimedia foundation wants images that are licenced under some free licence because that way the images can be used for all purposes, instead of just on specific wikipedia article pages and only as long as those pages have a specific content that makes the use of the image fair use.
posted by fvw at 8:13 PM on January 23, 2007

Response by poster: Richardp: I shouldn't have invoked Fair Use; you notice that was a throwaway in that I didn't mention it by name.

So ignore that. :-)

fvw: you're right on your first point, for my purposes.

Let's forget I ever implied fair use, and get back to the legal mechanism of copyright and trademark and the infringement of each; my apologies for the red-herring.

Why is it legal for me to post a picture of the Largo Public Library, which picture I created, but not legal for me to post a picture of a PC running AutoCAD 2000, which picture I likewise created? Specifically?
posted by baylink at 8:35 PM on January 23, 2007

With regards to U.S. copyright law, the case you want to look at is Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999). You can read a nice summary here.

Bridgeman Art Library v Corel Corp set the precedent that museum reproductions (i.e. high-quality photographic reproductions) of paintings are "slavish copies" and as such are insufficiently original to acquire their own copyright. In the decision in that case the copyright status of these reproductions was declared to be identical to that of the original - if the original is in the public domain then so is the museum reproduction. Similarly, if the painting's copyright term has not expired the owner of said copyright holds the copyright to the museum reproduction until the painting's copyright expires. Presumably WikiMedia Commons considered the matter and found the risk too great that a judge could come to similar conclusion with regards to a screenshot - that a screenshot is a "slavish copy" that is insufficiently original to acquire its own copyright and as such its copyright status depends entirely upon the material it reproduces.
posted by RichardP at 8:37 PM on January 23, 2007

Oh, and by the, way since the passage of the Copyright Protection Act of 1990 (see the U.S. Copyright Office Circular 41 or here) an architect can now hold copyright to the actual building constructed from his or her plans.

Publishing a photograph of the building can now result in a violation of the architect's copyright. Fortunately Congress included a "public place" limitation on this copyright. The "public place" limitation permits the unauthorized publication of pictures or other pictorial representations of buildings if they are located in or visible from a public place. So you while could post your photo of the Largo Public Library, but you couldn't necessarily do so with regards to all buildings.
posted by RichardP at 8:56 PM on January 23, 2007

Response by poster: I'm clearly going to have to hit the law library and *read* Bridgeman, because Commons cites it too, and I can't see how it applies to the issue at hand.
posted by baylink at 9:06 PM on January 23, 2007

Response by poster: Oh, and RichardP: I had *not* heard about the Public Place exemption, but I *did* understand that the interpretation of that clause applied to commercial exploitation.

And there's another issue there: Me selling a single framed and possibly modified copy of a photograph is -- is it not -- a different issue than *either* of the issues that would be involved in me selling such a photo to, say, a postcard company?
posted by baylink at 9:09 PM on January 23, 2007

If I may butt in with another example, that people might be able to enlighten us on, to see how far this prohibition might extend;

What if I write my own program; a program that uses the standard Windows widgets. Would posting a screenshot of this program be discouraged, because Microsoft presumably holds copyright over the [OK] and [CANCEL] buttons, and the [X] close button?
posted by Jimbob at 9:33 PM on January 23, 2007

I had *not* heard about the Public Place exemption, but I *did* understand that the interpretation of that clause applied to commercial exploitation.

Ah. The actual language is as follows: "(a) PICTORIAL REPRESENTATIONS PERMITTED- The copyright in an architectural work does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building or other three-dimensional structure in which the work is embodied is located in a public place." Absent this language, commercial exploitation of photographs of buildings could only be done with either the cooperation of the building's copyright holder or under fair use (which is very limited in most commercial settings).

Me selling a single framed and possibly modified copy of a photograph is -- is it not -- a different issue than *either* of the issues that would be involved in me selling such a photo to, say, a postcard company?

I'm afraid I don't understand your question. Are you back to asking about fair use and its balancing test?
posted by RichardP at 9:34 PM on January 23, 2007

What if I write my own program; a program that uses the standard Windows widgets. Would posting a screenshot of this program be discouraged

Discouraged by who and under what circumstances? Are you asking if such a screenshot would be permitted to be included in the Wikimedia Commons or are you asking if publishing it might result in a "cease and desist" letter from Microsoft? I am certainly no spokesman for Wikimedia Commons nor am I lawyer, but I took a quick look at the Wikimedia Commons restrictions on screenshots and they insist that any UI elements be from a UI "skin" with a completely free license. I think your example would not be acceptable to them. With regards to Microsoft, in the past they've sent "cease and desist" letters to websites that have posted screenshots of new UI elements in unreleased versions of Windows (although such letters may rely on more one theory, i.e. unfair competition, copyright, and so on). Thus, in this latter case, it might depend on circumstances. Certainly Microsoft appears to have to have no objections to screenshots of programs used in reviews, manuals, marketing web sites and many other commercial uses.
posted by RichardP at 10:00 PM on January 23, 2007

Response by poster: > Absent this language, commercial exploitation of photographs of buildings could only be done with either the cooperation of the building's copyright holder or under fair use (which is very limited in most commercial settings).

Yes, and much of the advice to photographers which I see seems not to realize that this exemption exists -- as I didn't. How, exactly, does that extra extension of copyright do anyone any good? Are many buildings built which no one can see? ;-)

> I'm afraid I don't understand your question. Are you back to asking about fair use and its balancing test?

No, that was more about the First Sale Doctrine... but perhaps you can't take advantage of that with your *own* works... it clouds the issue at hand, anyway.

> but I took a quick look at the Wikimedia Commons restrictions on screenshots and they insist that any UI elements be from a UI "skin" with a completely free license. I think your example would not be acceptable to them.

Yep; them are the unreasonbly paranoid guidelines I'm talking about. We're not talking about whether MS *will* object -- we're talking about whether statute and caselaw give any remote indication that they *could win*.
posted by baylink at 10:37 PM on January 23, 2007

How, exactly, does that extra extension of copyright do anyone any good? Are many buildings built which no one can see? ;-)

Before 1990 architectural works such as buildings were not eligible for copyright. As such, under copyright law a building was not considered a derivative work of the architect's plans, even when the plans were copyrighted. A builder who purchased a set of plans could build many copies of same building from the plans without the permission of the architect, so long as the builder was careful not to copy the actual plans themselves. The Architectural Works Copyright Protection Act of 1990 granted copyright protection to certain architectural works, and as such they can now be considered to be derivative works of a set of copyrighted plans. Presumably congress wanted to enable an architect to be able to license the use of his or her plans on a building by building basis, but not enable an architect to prohibit public photography of the buildings in question.

We're not talking about whether MS *will* object -- we're talking about whether statute and caselaw give any remote indication that they *could win*.

If that is all you require, then I think the answer is most certainly yes, there is definitely at least a remote indication that someone who relied on material from the Wikimedia Commons could lose a "screenshot of UI" copyright case in some jurisdiction, somewhere. Under existing copyright law a copyright holder has the exclusive right to control the creation of derivative works. Because Wikimedia Commons has made the decision to not rely upon fair use, they must be able to show that they have permission from the rights holders of all "parent" works (or don't need them due to them being in the public domain). In addition, they also need the permission of the creator of the derivative work (although, since they're willing to make use of the Bridgeman "slavish copy" standard, they've decided that they don't require permission of the creator of the derivative work if they are convinced that they have the permission from the rights holders of all "parent" works when the derivative work is an exact reproduction).

If they can't rely upon fair use, the only remaining defense would be that the utilitarian aspects of computer UI elements renders them ineligible for copyright protection. However, copyright for icons is clearly recognized by statute and by case law. In fact, the only recognizable UI element that I am aware that has been explicitly denied copyright protection are typeface designs.
posted by RichardP at 12:08 AM on January 24, 2007

I wonder if taking a screenshot (of Firefox for example) and posting it on the internet for millions to view is regarded the same as filming Microsoft Word with a 35mm camera and displaying it on a cinema screen, for millions to view.

In the case of the cinema, you most definately require permission from the copyright holder.

But suppose they film someone typing on an Underwood or writing out by hand with a Monte Cristo...?
posted by Robert Angelo at 5:34 AM on January 24, 2007

Response by poster: > Under existing copyright law a copyright holder has the exclusive right to control the creation of derivative works.

and that's the issue I need to shepardize, right there. What *has* been held to be derivative, and why, and what hasn't and why.

Time to sign up with Versuslaw, I guess...
posted by baylink at 10:33 AM on January 24, 2007

Here is the Microsoft policy on use of screenshots containing their widgets. It is somewhat permissive but not nearly free enough for the kind of thing that Wikimedia Commons requires. I think it's pretty clear that a screenshot that includes the graphical widgets of a third party (i.e. not the person taking the screenshot) constitutes a derived work, just as linking some code with a third party library constitutes a derivative work.
posted by Rhomboid at 11:22 AM on January 24, 2007

baylink, with regards to derivative works, you may wish to take a look at the Chilling Effects site. It has a section on derivative works. In particular, the FAQ on derivative works is pretty good.
posted by RichardP at 12:24 PM on January 24, 2007

Response by poster: > Here is the Microsoft policy on use of screenshots containing their widgets.

Yes, clearly Microsoft would want me to think they're entitiled to a copyright in screenshot of their programs.

Luckily, Microsoft is not (yet) the US government.

Thanks for the link, Richard; there's a bit more meat there, but no one seems to be going far enough in the direction of photographic-style works to bear on ths issue I'm trying to get to. Except the Bridgeman people, who go *too* far.
posted by baylink at 7:58 PM on January 24, 2007