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Can I post that picture? Screenshots, copyright, fair use, and common sense

Screenshot from XooxleAnswers.com.  Fair use, or copyright infringement?

I've posted a big, fat screenshot here from a website that I visit often.  It's from XooxleAnswers (say: zooks-il answers), a top-notch research service here in Washington. 

Am I violating anyone's copyright by posting this image?

I'm pretty sure I'm not.  XooxleAnswers, after all, is my own website, so I feel pretty confident that I'm free to post what I want, where I want?  Pretty confident...but not 100%.

The image is mostly content that I've created and can unambiguously claim as my own.  But look closely.  The screenshot contains image ads from several sites like newspaperarchive.com and ancestry.com.  I didn't create these.  Might these companies take umbrage at having their work included in my screenshot?  There are also Google Adsense text ads, and these pose a double-conundrum, as both Google and the advertising company might be tempted to make a claim of copyright infringement. 

Now, I have no real concern that any of these companies will complain about my screenshot violating their copyright.  After all, they want their ads seen by as many people as possible.  They'd have to be crazy to complain about copyright violations, as no one would want to carry their ads anymore, for fear of accidental infringement.

But people do file legal complaints, now and then, claiming copyright infringement over the use of screenshots.  In Healthcare Advocates v Harding, a company claimed copyright ingfringement because lawyers used screenshots of a website in defending their case.  The ruling in this case scoffed at the claim:

"It would be an absurd result if an attorney defending a client against charges of trademark and copyright infringement was not allowed to view and copy publicly available material, especially material that his client was alleged to have infringed." 

The court considered this use to fall under what is called "fair use", a legal doctrine meaning it's okay to use copyright materials sometimes, as long as you don't overdo it. 

Sounds common-sensical, but courts have also said, in effect:  we're not going to give you any meaningful guidelines as to what is or isn't fair use...you just have to take your chances.

Guidlines may develop, over time, as courts rule on different copyright claims involving internet materials.  But so far, there's been very little case law specifically about screenshots, and it's a real legal no-man's land at the moment.

As the court above noted, a total ban on screenshots leads to an "absurd" result.  In order to show people how to do certain things, or what a certain feature looks like, or how several sites compare, some screenshots are simply a necessity.   Try explaining how to block some text in Word, or move a column in an Excel spreadsheet without actually showing some screenshots!

When I use screenshots on my own websites, I tend to stick to these rules.  These have no special legal standing (and for goodness sakes...I'm not offering any legal advice here!), but here's what my common sense tells me:

  • Keep screenshots small, with just enough detail to illustrate whatever is needed.
     
  • Use only a very limited number of screenshots from any given source
     
  • Use screenshots primarily to be instructive.  If you use them to criticize or compete, you're more likely to attract the attention of, and action from, the copyright owner.
     
  • If the copyright owner complains, no sense fighting.  Just remove the screenshot, and move on. 

An alternative approach, of course, would be to seek permission from the copyright holder for each any every screenshot.  But as you can see from the XooxleAnswers example, that can be a complicated undertaking.  Even for one's own website.

Good luck, everyone.

David Sarokin

For more info: 

XooxleAnswers Research Service, Washington DC

NewspaperArchive.com (in my opinion, the web's best historical newspaper resource)

Ancestry.com (another excellent family history resource)

Google Adsense

Comments

  • recruiteresq 4 years ago

    Very helpful article. thanks!

    @mjsq

    (also, included a link to my blog & saw a typo 'You comment cannot contain links or URLs.')

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