Screen Grabs, Fair Use, and the Digital Economy

There is continuing confusion about the use of frame grabs for illustrating books and articles about film. It’s a question I get asked regularly, and yesterday there was a query about it on a discussion list I subscribe to, which prompts this post. My understanding is this.

First, there’s no impediment. It’s fair use. I’m no lawyer but as for my credentials as an expert witness, I’ve taught classes on copyright to film students, written about it in my books on music, and used frame grabs for 25 years without ever having any problem.

Legally speaking, however, the situation in the UK is rather confusing, because the legislation is now seriously out of date (I’ll come back to this), and as far as I know it’s never been tested in a court of law. But I’m quite sure that shouldn’t stop anyone doing it (as long as we’re talking about scholarly and educational writing and reviews, although I believe this can also apply to short film-clips used in video essays, a very interesting emerging academic genre.) (More below.)

Here’s my reasoning. First, natural justice. You’re allowed, under certain provisions, to copy text for critical purposes quite freely. Why should students and scholars of the media be denied the same criteria of usage as printed forms of cultural production?

Second, custom and practice. Here’s a note sent out recently to contributors to Cinema Journal: “No permission is needed for frame grabs. No permission is needed for anything originally used for publicity purposes (e.g. movie poster), or for objects (e.g. book covers). But if you have an original, stand-alone photo by a photographer, you do need permission.” This is a respected scholarly journal published by the University of Texas Press.

This has been the practice in many quarters for a long time, although perhaps we shouldn’t be surprised if small publishers or those outside the field don’t know about it. It also has a very curious history. I once read in an artists newsletter that there was a legal anomaly which meant that while a film was protected by copyright, the individual frame was not, and could therefore be freely reproduced. Unfortunately I lost the reference. No matter. It turns out even film trailers before a certain date were not covered by copyright. According to a US court decision in 2001 (Hofheinz v. A&E), mentioned on the Internet Archive Forum, film trailers prior to 1989, and certainly those before 1964, were mostly in the Public Domain—in the USA—because they hadn’t been registered for copyright independently of the film in question. The result is that there are now web sites where you can download them—such as:

This being the situation under US law, it points to bigger anomalies underlying all issues of intellectual property in the global digital economy. Copyright law is not universally the same. In particular, it wasn’t until 1989 that the USA joined the Berne Convention, the international regime established back in 1886, which required its signatories to periodically bring their legislation in line; but they were never all in sync with each other. Moreover, if you trace the history of the Berne Convention, you find that the law always lags behind the methods of mechanical reproduction. (The very first Convention, just nine years after the invention of the phonograph, recognised no form of copyright in sound recording—out of deference, it was said, to their Swiss hosts, who were the principle manufacturers of musical boxes and Barbary organs.) Washington’s decision to join was motivated by the self-interest of economic imperialism—the growing importance of foreign earnings from intellectual property—but the problems have only been compounded by the digital economy. In short, the meaning of technical convergence, the ease with which any kind of content can be digitised, duplicated and transmitted round the world: the internet has no internal boundaries.

Piracy was already a problem with the video cassette. Digital disks and nowadays peer-to-peer transmission make it uncontrollable. The legal trend was also already evident in the result of the lawsuit which Walt Disney and Universal filed against Sony in 1976—and finally lost in the Supreme Court in 1984—charging that the Betamax video cassette recorder led to copyright infringement. Sony counter-claimed that consumers had the right to ‘timeshift’, recording programs at home for private use later. In fact the reason the Hollywood majors lost out to the Japanese corporation was that by the time the case reached Washington, so many people were doing it that the judges wisely concluded it wasn’t a good idea to criminalise something you couldn’t stop (a line of reasoning which is not applied to drugs). The ruling was decisive both domestically and internationally, although it was always possible to handle things differently. In France, for example, a tax was levied on blank cassettes to be used for supporting the film industry.

In Britain, where the last major revision of copyright legislation was the Act of 1988, New Labour commissioned the Gowers Review in 2005. Andrew Gowers was a former editor of the Financial Times, who turned in a report a year later which was far too radical for the government to be able to stomach. Gowers wants to extend ‘fair dealing’ or ‘fair use’, where at present the law in the UK is too narrow, to allow for creative, transformative or derivative works. Exceptions for libraries and education are also recommended. Ironically these are all rights which in fact exist in the USA, and have just been further extended. Pat Aufderheide, of the Center for Social Media at the American University in Washington, reported only recently what she calls ‘another victory for common sense and fair use’, in a ruling from the Librarian of Congress (acting on recommendations from Copyright Office) which greatly expands access to encrypted, copyrighted works for fair use purposes. ‘Now, college teachers of all kinds, university film and media studies students, documentary filmmakers, and makers of noncommercial videos can all break encryption on commercial DVDs to quote motion pictures, for the purpose of criticism and comment.’

Gowers is remarkably clear about this. Copyright law was framed through a series of compromises to enable publishers to protect their interests and authors to be able to share in the fruits of their own labours, while at the same time recognising the destiny of every publication to enter into cultural dissemination and circulation.  Digital technology changes the ground rules, because it transforms the infrastructure of knowledge, imagination and creativity. This situation makes copyright owners paranoid, but as Gowers sees it:

Unlike physical property, knowledge, ideas and creations are partial ‘public goods’. Knowledge is inherently non-rivalrous. That means one person’s possession, use and enjoyment of the good is not diminished by another’s possession, use and enjoyment of the good. As Thomas Jefferson said: “he who receives an idea from me, receives instruction himself without lessening mine … as he who lights his taper at mine, receives light without darkening me”. [§1.2]

In other words, you can have a copy of this frame grab or this MP3 file without depriving me of it. It could have come from anywhere—a friend, my old collection of LPs, a bootleg recording from the 1970s available for download. And doesn’t matter if it’s copy protected, you can always download software which’ll get round it—which in the United States is now legal. Gowers recognises this is happening, and frames his recommendations so as not to criminilise people for doing things which have become common practice. I believe we should not only endorse Gowers’ proposals,  but also call on universities to frame their own IP policies accordingly.

Your reward for reaching the end of this rather long blog is a video:

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