Common sense copyrights

["Lisa Wright" <liwright -at- earthlink -dot- net>]

I read the recent discussion of whether screen captures of a GUI are
copyrighted with some interest, but I think the discussion got
sidetracked from the actual question and drifted into irrelevant
(interesting, but irrelevant none the less) issues. Just to be sure, I
went back and read the entire thread, then looked up some of the
references, and applied a bit of common sense. This is obviously an
issue that affects many of us on the list, so I thought it worth looking
into a bit more, and I'd like to offer up my different take and hope to
spark further debate on the subject.

The original question from Chuck was: "Are these screen shots of
application GUIs protected by copyright law?"

And there were many answers.

The actual copyright refers to the *software,* which includes the code,
database (if applicable) and the interface. According to the Stanford
University Libraries copyright and fair use
http://fairuse.stanford.edu/library/faq.html explanation (thank you to
Sandy Harris for the link), there are four critical factors, the most
important of which is:

"The effect of use on the potential market for or value 
of the work--In general, any use that supplants or 
diminishes the normal market for the original work is 
considered an infringement, but a use does not have to 
have an effect on the market to be an infringement."

"Although all of these factors will be considered, the 
fourth factor is the most important consideration in 
determining whether a particular use is "fair." Where 
a work is available for purchase or license from the 
copyright owner in the medium or format desired, copying 
of all or a substantial portion of the work in lieu of 
purchasing or licensing a sufficient number of "authorized" 
copies would be presumptively unfair. Where only a small 
portion of the work is to be copied and the work would not 
be used if purchase or licensing of a sufficient number of 
authorized copies were required, the intended use is more 
likely to be found to be fair."

So, as I read it, for a software program, to violate the copyright you
need to create illicit copies of the software, not pictures of
individual screens. You could also be in violation by duplicating the
software and pawning it off as your own. But using pictures of the
screens in no way inhibits the market for a product, except perhaps in
the case of proprietary applications, which is somewhat different issue
(and there we're probably talking about enabling violation of a
copyright by providing proprietary information rather than by
duplicating the product). Such use seems unlikely to supplant the use of
the product itself, as it is an entirely different beast altogether.

Now, where a writer could without question get into trouble is if she
were to take documentation for a software product and simply repackage
it as her own, or copy substantial portions without permission. Software
documentation also carries a copyright. 

There are three other factors, also per Stanford: First, "the purpose
and nature of the use." In the case of documenting software, even if you
are writing a book with the intent to make a profit, you are still not
interfering with the use or purchase of the software. In fact, you could
argue that you are actually making the software a more attractive
purchase by providing additional information on how to use the software
that may not be available from the manufacturer.

Second, "the nature of the copyrighted work." This appears to depend on
the medium. But to speak to the question of *differences* in media and
intent, again, software (the interface) and a picture of the software
seem to me to be fundamentally different things. It's not like taking a
picture and making another picture, which would be a derivative work.
I'm not making derivative software. I am using the images of the
copyrighted work to illustrate my text. If I simply write about the
product in exhaustive detail, would that mean that I am not violating
the copyright? The capture is illustrative, not duplicative. 

The third factor is "nature and substantiality of the material used"
when compared to the length or substance of the whole. Really, I am not
reproducing the software in any usable form, so I'm not sure that the
number of captures comes into it.

I think there's another important point to be made. There is on the US
Copyright Office FAQ page (http://www.loc.gov/copyright/faq.html#q60
again, thanks Sandy) an answer to a question that reads: "Copyright law
protects the original photograph, not the subject of the photograph."
(This in answer to a question about how to protect your Elvis
sightings--I kid you not.) I think this is actually very pertinent to
the subject at hand. Writers creating new text about something else are
not necessarily infringing on copyrighted material simply by including
images of that material in their work.

Again, I think common sense should prevail regarding obtaining
permission for extensive use. I don't know how the after-market book
business works, but it seems obvious to me that you're likely to do
better if you have a positive relationship with the company about whose
products you are writing. I find it absurd, on the other hand, to think
that I need to get permission from a company to write an article, white
paper, or internal document that includes screen captures. Or, for that
matter, probably even a book. Absurd. Extreme. Nonsensical. Dumb, even.

Lisa Wright
LiWright -at- earthlink -dot- net


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