Post by McGyver* * * If one were to post a screenshot (or a series
of i.e. five screenshots) of . . . the Microsoft website
in the scope of an article with the purpose to critique
(both positive and negative) design-elements would one
be infringing upon copyright or intellectual property issues?
Would it not basically be a citation and thus full under
fair use?
The goal is obviously not to "copy" the intellectual
property (being the content of Microsoft's Homepage),
but instead to use it as a grounds for discussion - similar
to using a screenshot in a presentation.
The screenshots would be copyright violations.
A picture is not a citation.
The goal obviously would be to "copy" the content within the
screenshots.
This answer must not be relied on as legal advice for the reasons
posted here: http://mcgyverdisclaimer.blogspot.com . And I am
not your attorney.
It is possible that the "McGyver" response could prove to be correct
as a _practical_ matter, if,
OTOH, the OP unilaterally acquiesces in it by refraining
from doing what he had wanted to do (that is, obviously,
he presumably would not be subject to a claim of wrongful
copying/use if he doesn't copy/use) or,
OTOH, _if_ a number of "if"s not yet addressed sufficiently
by the OP were to occur;
but (with all due and genuine respect to "McGyver") that response is
not law-analytically correct because the OP has not posted enough
information to enable an analytically correct evaluation (much less a
real-life answer).
The functional problem is that the OP asks two separate questions but
without anywhere enough (actual or hypothesized) factual context to
enable analysis of the second one yet "McGyver" conclusorily proffers
a singular answer to both.
The analytical problem essentially is that an unstated yet clearly
present assumption of the OP's second question and of the answer
suggested by "McGyver" is that there can be something at least close
to a definitive (analytically "correct") answer to the "fair
use":yes?/no? elements of the OP's query whereas, for real-life
purposes, the actual answer will depend on (what might be any number
of) the here referred to but not by the poster supplied or considered
"if"s. That is:
Regardless whether the OP proposes to copy/use one copyright protected
screen display or five (although his parenthetically stated "or" etc.
leaves unclear what he does propose to do), "McGyver" would have been
correct (essentially by definition) if he had said that copying/use
without the copyright owner's permission presumptively constitutes and
so, if without more, would constitute copyright infringement if the
copyright owner were to make a claim to such effect, and he is correct
to criticize the OP's attempt to rationalize that his "goal' is
"obviously [SIC!?!?] not to 'copy' the" copyright protected work to
which he refers since the OP makes it . . . well, . . . obvious that
his so doing (and hardly merely a "citation") is exactly what he
intends. HOWEVER:
Whether there is or will have been a "fair use" of copyright protected
work such that, if "fair use" is established (an eventuality that
perhaps could be accomplished by the copier being able before or after
the fact to persuade the copyright owner that the use in question is
"fair" in the statutory sense) if the copyright owner learns of the
use and if the owner then makes some sort cease-and-desist claim, then
(only in part by statutory definition and mostly by reason of facts
albeit such "ifs" might include litigation) there will not have been
law redressable copyright infringement.
The core point, in other words, is that both the OP and "McGyver"
(except in the latter case by way of assumption) overlook the role of
_process_ in light of the law-structural fact that a claim of "fair
use" is an _affirmative_ _defense_ to an infringement lawsuit re.
which, as such, the defendant (if sued) has the burden of proof (and,
even if not sued, presumably would have the practical burden of
persuasion by way of request or negotiation).
One who understands this relatedly will understand that the OP's query
is vague/confusing for "fair use":yes?/no? purposes from the very
outset since he does not make clear what it is, exactly, that he
proposes to do including (as noted) not even making clear whether he
contemplates use of only one screen shot or (he says "or") of five as
meanwhile compounding this vagueness by also not reporting how much of
the entire web site in question he proposes to reproduce; yet (as
"McGyver" knows but forgot to mention) one of the core factors
necessary to analyze is, as between the parties, the most credible
answer to the question,
What is the amount and substantiality of
the portion used in relation to the copyrighted
work as a whole?
or, if the parties do not mutually answer that question if an
infringement claim is made, what the court's answer to that question
probably will be.
Further, although he does indicate that he contemplates publishing a
"critique" of some kind "for the purposes of discussion" (by/among
who? in what sorts of media/forum? etc., etc.), the OP does not
provide information that otherwise meaningfully identifies the purpose
and character of the use in real life context and whether the use he
would like to make of the copyright protected work is of a commercial
nature or for nonprofit educational purposes.
And while one can speculate what the copyright owner's contention in
this connection possibly may be, if it learns of then opts to complain
about the OP's copying/use, the OP relegates his posting's readers to
speculation about what he would contend is the effect (or not) of his
copying/use on the existing and potential market for or the value in
some other respect of the copyright protected work (although he does
seem to suggest, albeit also vaguely, that perhaps his copying/use
could have a "positive" such effect).
It may be accurate to guess that if the OP does what he would like to
do in a practical and (as he does indicate is his intent) in a
fair-minded way, he would not be subject to an adverse claim; and it
may also be accurate to guess that, if he does what he has in mind and
is subjected to an adverse claim, he would prevail on "fair use"
grounds (again: perhaps by way of persuasion of and acquiescence in
his use by the copyright owner rather than by having to defend and
prevail in a lawsuit). It is just that his query in the so far
factually skeletal form he posts it relegates a reader to being able
to do no more than guess and yet presumably he does not want to decide
whether or not to copy and use the material in question based merely
on a guess about these matters.