FW: [SEELANGS] copyright question - images from films

[Brewer, Michael]

I am forwarding this response on behalf of Janice Pilch, Chair of the AAASS B&D Subcommittee on Copyright Issues. 

mb

Michael Brewer
University of Arizona Library 
brewerm at u.library.arizona.edu


Posting on behalf of Janice T. Pilch, University of Illinois at Urbana-Champaign:
---------------------------------

Dear SEELANGS,

A few more comments to add to Michael Trittipo’s excellent message.  

Screen shots/frame grabs do fall under copyright, as parts of an original creative work. In the U.S. the fair use doctrine, a limitation to the exclusive rights of the copyright holder, may be applied in certain circumstances to justify the use of a work, in whole or in part. 

Whether a particular use is "fair" depends on the specific circumstances, based on a determination involving the four fair use factors set out in section 107 of the U.S. copyright law: purpose of the use, nature of the work, amount used, and market or potential market for the work. 

Use of one still shot in most circumstances would be considered a fair use, but in other cases it might not be. For example, if someone took one screen shot from a new Hollywood movie, an important shot, and they made it into a poster or a photograph, and made millions of $ on it, my guess is that that they would get sued and that the judge would rule that this was not a fair use, even though it consisted of only a tiny portion of the whole work. On the other hand, there are plenty of cases where whole works are used and the use is deemed fair by the courts. This often is the case in use of images as thumbnails. 

There is also the issue that a screen shot is part of larger work, but on its own is a whole work, a whole image.

As for the 10% "rule," this is an arbitrary percentage used by some organizations. It is not a part of the law itself. In the 1970s when the U.S. codified the fair use doctrine, and again in the 1990s, when new technology was proliferating, various sets of guidelines were developed by librarians, educators, and publishers, some of which took hold and became widely used. 

Such guidelines were developed to provide a tentative measure of certainty. But none of these guidelines have the force of law, they are not enforceable. Many publishers like them because they provide a sort of standard. But they are not in the law itself. There are no numerical rules or regulations in the law concerning fair use. That is what makes fair use difficult to apply, but also what makes it a flexible and useful part of the copyright law. 

Increasingly, organizations, including the American Library Association, are discouraging people from using unofficial numerical guidelines, which were originally meant to convey general or minimum standards but are too often interpreted as maximum standards. 

With fair use, it's really about a qualitative objective judgment of what is morally "fair" with respect to uses that implicate rights of the copyright holder. Judges consider the four factors, look at the big picture, and make a determination. 

Also, on the matter of a U.S. journal asking a Canadian professor to check on U.S. copyright law, that is the right approach. Publication of an article in a U.S. journal is governed by U.S. law, regardless of the nationality or domicile of the author. In fact, much of this SEELANGS discussion has revolved around fair use—that’s because the publisher is located in the U.S. If the article were being published in Canada, which does not have a fair use doctrine, we would be having a different conversation. Canada has a “fair dealing” provision which works differently, and is not as flexible as fair use.

Sincerely, 

Janice Pilch 
Chair, AAASS Bibliography and Documentation 
Subcommittee on Copyright Issues
Visiting Program Officer on International Copyright, 
Association of Research Libraries

---------------------------------------
Janice T. Pilch
Associate Professor of Library Administration, Humanities Librarian,
University of Illinois at Urbana-Champaign
Visiting Program Officer in International Copyright, 
Association of Research Libraries
University Library 425B
1408 W. Gregory Drive, Urbana, IL 61801  
Tel (217) 244-9399
Fax (217) 333-2214

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