I wrote yesterday, in a grumpy state, about the restrictiveness of copyright and licensing of screenshots in academic material. Today brings happier news.
The ever-excellent Laura Quilter sent me the following advice:
It’s not that “there is an argument” for fair use – this is a quintessential fair use. There is 0% chance Warner will sue over screenshots in an academic paper or book. Getting Warner’s litigation machine in action is expensive, and this case would be a certain loser for them. Certain, definite, 100%, no chance in hell of winning. I’d argue de minimis.
In this instance, I actually don’t blame Warner: They say they will not license such uses. That’s because licensing screenshots for academic purposes will make them very little money, and they would have zero chance of winning a litigation over a use that exceeded the scope of the license. They actually aren’t asserting any rights they can’t enforce. They “have a policy against” anyone doing things, but that’s not enforceable; they won’t license the uses, but that doesn’t preclude fair use. In other words, it’s just not worth it to them to license this, and it’s easier to just say “no” than to substantively evaluate the individual requests for “academic” or exploitative uses.
Some publishers are more responsive to fair use than others, and you might try looking for publisher policies that are more reasonable, and helping your publisher to understand. At this point, Warner has indicated their disinterest in licensing, but has no conceivable interest in litigation, so honestly, your publisher should take it as an all-clear to go forward on several bases: (1) “they don’t care”, and (2) it’s fair use.
*I’m talking about US fair use, but UK is not that different on my understanding. Section 30(1) for criticism and review should cover it. Section 29(1) for research & study has not previously covered films (not sure if it was changed in the recent revisions) so that might have given rise to confusion. http://www.legislation.gov.uk/ukpga/1988/48/section/30 : “Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement [F1 and provided that the work has been made available to the public].” It’s hard to be clearer than that.
Contrary to my expectation – and contrary to the pessimism of many of my film scholar friends – my publisher agreed! Use of screengrabs should be deemed fair use.