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I am writing an article comparing three pieces of software. I have taken screen shots of all of them and would like to use them in a non-open access article. Given the intended journal, there is a reasonable chance of the images being on the cover. What are the copyright issues associated with screen shots?

Specifically, one of the pieces of software is free and open source (GPL v2), and two are free as in beer, but closed source with unknown licenses and no EULAs. To further complicate matters one of the closed sourced pieces of software looks and functions very much like a proprietary piece of hardware produced by a massive company. Three years ago I contacted the developer of the software and asked about using a screen shot and he said it was fine. The software is still widely available, but the direct download from the developers site now has text indicating that the massive company has "requested" that it be taken down. I own the physical hardware and am not aware of any crazy licensing restrictions. I could use a photo of the physical hardware if that is better.

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2 Answers 2

up vote 7 down vote accepted

You need legal advice. Talk to an attorney.

Perhaps your institution has one that you can take advantage of. Everything from here on out is rank speculation, and even your attorney's advice may not protect your from suit.

If you can, get permission from each source you want to take a screen capture of. There may be copyright protectable elements in those screen shots. There may also be trademarked elements.

If you cannot get permission for whatever reason, you may have to rely on fair use. Fair use is a defense to an infringement suit not a get out of jail free card. By using a copyright or trademark protected work without a license, you run the risk of lawsuit. Your institution may not be willing to rely on a fair use defense. Also, your publisher may not be willing to rely on a fair use defense (since they will be the lawsuit target).

I personally think your use is without question a classic and canonical example of fair use, but that doesn't mean that you will prevail in publishing without permission. Many venues require that your sign a form saying that you have the copyright or permission to use all your images, so be careful.

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Fully agree, very good points. Just an opinion: the publishers themselves generally insist written permission from the original publisher for any republished figures, so most probably they would ask for a written permission in this case, too. –  Greg Jul 29 at 15:51
    
Are you saying that there is no difference between a screen shot of a GPL and closed source software? How do pictures of hardware come into play. Is hardware even copyrighted or just patented? –  StrongBad Jul 29 at 16:03
    
@StrongBad: Hardware itself can't be copyright protected. Firmware inside a piece of computer equipment can be. Your photograph of such equipment cannot violate the patent on the hardware nor the copyright on any software it contains. There could be some trademark issues with the logos on such equipment, but there's a pretty strong defense to trademark infringement for uses which are solely for identification of the protected work. I think you're pretty safe to take a picture of a piece of hardware and use it in your article. You will own the copyright in that photo. ... –  Bill Barth Jul 29 at 16:30
    
In fact, it's better than trying to reuse the manufacturer's sales or marketing pictures, since they hold a copyright in said images! As to screenshots of GPLed software interfaces, I think this is an unsettled area of the law. To my knowledge, the GPL only covers the source code to the software and any graphics elements designed to support it. The Lotus v. Borland case says that the interface functionality itself is not copyright protectable, so a clone of said interface is non-infringing, but if you take a photograph of someone's painting, that's a derivative work requiring a license. ... –  Bill Barth Jul 29 at 16:37
    
I don't think the GPL applies to an image that you take of the interface thereby infecting your paper with the GPL. It's hard enough to apply the GPL to documents, so I don't think that's an intend effect. That being said, why not just get permission? –  Bill Barth Jul 29 at 16:38

If there's no explicit prohibition against it in a EULA, just mention the source of the screenshot, either in small print on the cover or in a colophon. Remember the law belongs to you at least as much as them and academics have been way to passive in helping courts settle these issues. And the proof of it is shown in other`s answers suggesting you should contact a lawyer. But in the United States, the Law is explicitly reserved for the People, not lawyers, and who but the Doctors of Philosophy should be leading the way?

In any event, assuming you're not displaying secret codes on the screen, one cannot confer use of the work through a photograph or screenshot, so you haven't violated the spirit of software copyright in any way.

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This is terrible advice from a person with legal training! While the sentiment is right, your advice opens its follower to lawsuit which they may not be able to defend. Just because use without permission in this case is in your opinion morally OK and likely a fair use, it's awful, awful, awful advice. –  Bill Barth Aug 2 at 14:14

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