Screen captures and image use on both private and personal blog use is common practice. Since the internet offers an easy to access collective of useful images and information, the line can be blurred on what is considered fair use and what is considered copyright infringement. Courts have refused to set bright-line rules regarding what is fair use. This is mainly because the Fair Use Doctrine was codified as part of the Copyright Act (Title 17) to address potential rigid application of copyright laws that could otherwise infringe on the very creative works the law was designed to promote. Since its implementation, courts have struggled to how to apply this doctrine consistently. One federal judge has been quoted as saying that, “fair use is one of the most unsettling areas of the law. The doctrine has been said to be so flexible as to virtually defy definition.”1 This leaves a field of gray for the rest of us to ponder and evaluate regarding screen captures and fair use.
Plagiarism v. Copyright. It's very clear that if you use someone else's content and claim it as your own without sourcing it, its plagiarism because plagiarism protects ideas. Copyright however, does not protect ideas; it’s truly a matter of law protecting exact expression of ideas in a variety of formats. Copyright law doesn’t protect the facts themselves. Therefore, the interpretation of fair use is mainly determined on a case by case basis. In the case of using a screen capture, even if you source the image used in your screen capture, it can still be subjected to fair use interpretation. Per Wikipedia, fair use is defined in the following way:
"Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test." What does all this mean? Fair use only applies to works that are copyrighted. Generally, anything that is not copyrighted is considered fit for public use. To determine fair use of copyrighted works you must evaluate it against the four-factor balancing test.
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
Let's break these four factors down.
Purpose and Character of Use: Fair use defines using copyrighted works for education, research, news reporting, scholarship, criticism and comment as being protected under the Fair Use Doctrine. This essentially covers most personal blogs, news outlets, schools and editorial usage of copyrighted materials. However, you still have to consider that this is only one of the four factors to consider. If you stand to make a profitable gain from screen capture usage, it is likely going against fair use.
Nature of Copyrighted Work: Since copyright doesn't protect the idea of the work, just the exact work itself, the less creative the work, the more likely it is deemed fair use. However, just because the facts themselves are not protected, doesn’t mean the arrangement of the fact isn’t. As a general rule, it is more likely to be considered fair use the more factual than creative the copied work is.
Amount and Sustainability: This one of the four factors is pretty vague. There are no hard line limits on how much of the material you can copy. But, when you consider the widespread nature of the internet and the ease of replication and sharing there is some relevance to this factor for images. By the very nature of an image, you aren’t as likely to us a partial image. Though in the case of a screen capture, you may only be highlighting a part of the whole. The most concrete application of copied images being fair use is when the images are used in a transformative or productive manner like a parody. By becoming transformative, a stand-alone interpretation gets created of a copyrighted image and becomes something new, i.e. its own entity.
Effect upon Works Value: The closer you get to using someone else’s creative works for your monetary or commercial gain, the less likely you are to be protected under fair use. Courts do strive to seek balance between the rights of the rights holder and the general benefit and welfare of the public so there is a little wiggle room here. However, if you have everything to gain and the rights holder won’t benefit or could be harmed by your use, the courts are not likely to side in your favor.
Moral of the story: It’s likely that if you are using a screen capture of copyrighted works to educate, comment, or criticize the topic the use of screen capture images are aptly deemed fair use. It generally comes down to money. If you are going to profit from the use of a screen capture image, you may be in violation of fair use.
1 Princeton University Press vs. Michigan Document Services 99 F.3rd 1381 (6th Circuit 1996). Cert. Den’d. 117 S. Ct. 1336 (1997).