Subject: Re: screenshots and liability
From: "Andrew C. Greenberg" <werdna@gate.net>
Date: Wed, 29 Sep 1999 08:10:14 -0400

At 9:23 PM -0700 9/28/99, Mark Stone wrote:
>Several people have asked, so I dug up some resources I've used in the
>past.
>
>Here's the issue: what is the trademark/copyright status of an image of a
>program when used as a screenshot in a published document? A standard
>example would be a screenshot showing Netscape Communicator.
>
>Screenshots are a thorny issue in the publishing world. Programmers who
>want to apply software licensing principles to the publishing world would
>be wise to acquaint themselves with some of the legal history already well
>established in that world.

Perhaps the best advice in the cited article is to note that you 
can't lose if you get permission -- consent is an absolute defense 
and, in my experience, it is freely given in many, perhaps most 
cases.  There also appears to be nothing to lose in the asking. 
Judge Souter, I believe, in a footnote to the Campbell v. Acuff-Rose 
(Two Live Crew sued by Estate of Orbison for 'O Pretty Woman), 
expressly discredited the Estate's argument that there could be no 
fair use because 2LC asked permission, but was denied -- it either 
*IS* fair use or it isn't, and asking permission to avoid a fight 
before it happens doesn't change the fact.

Except for news reportage, literary criticism or academic 
publications (and even then), you don't really want to be relying on 
fair use when you don't have to be relying thereupon.  You can never 
be truly comfortable what will be the result of a lawsuit where the 
sole defense is fair use until the very end -- and by "the very end," 
I mean net of all appeals.