Wikilegal/Copyright in Zoom Images

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Introduction[edit]

When a person takes a screenshot of a multi-person Zoom call, they will most often be the only person holding a copyright in the Zoom screenshot. In a small number of cases, individual participants may also be copyright holders because copyrights may exist in individual participants' Zoom backgrounds. If an individual has a copyright in their Zoom screenshot, they will be able to license their work as a free culture work as long as copyrighted works captured in the Zoom screenshot are not recognizable to the average viewer in the Ninth Circuit and if unauthorized copying is sufficiently trivial, in the Second Circuit.

The minimum creativity requirement for copyrighted works is generally a very low threshold.[1] As such, an individual taking a Zoom screenshot will likely have a copyright in any screenshot they take, although the copyright may be relatively thin (meaning that other screenshots that look similar to their screenshot likely do not violate their copyrights in the screenshot). The copyright may be broader if the individual taking the Zoom screenshot makes many creative choices since more creative choices will result in more protectable elements and thus a broader copyright.[2]

The de minimis doctrine will likely deny most participants independent copyrights in their Zoom backgrounds because individual backgrounds and screens will usually form a small, insignificant portion of a Zoom screenshot. Furthermore, many backgrounds, including blurred bookshelves, and plain backgrounds generally, will not qualify for copyright protection because they will not meet the low originality and minimum creativity requirements. In a small number of cases in which it appears that a participant arranged their background with intentional artfulness and their background forms a larger, more significant feature of a screenshot, it is possible that the screenshot infringes upon the copyright of the person who created the background.

Originality and creativity required for copyright protection[edit]

To have copyright in their Zoom screenshots, individuals taking the screenshots must qualify as "authors" and must meet the "originality" as well as the "minimum creativity" requirements.[3]

Authorship generally[edit]

An "author"[3] is anyone who qualifies as an "originator" or a "creator" and meets the "originality" requirement. The "originality" requirement, in turn, requires "independent creation", "distinguishable variation", and "minimum creativity".[4] Essentially this means that an individual must make something, where their creative input is more than merely translating a work from one medium to another[5] or producing a purely functional work such as a phonebook.[3]

Minimum creativity[edit]

The "minimum creativity" requirement is a very low threshold and will be met as long as the "idea" of the screenshot is distinct from the "selection and arrangement" of protectable and unprotectable elements in the Zoom screenshot itself.[6]

The author must make decisions about these elements, including decisions about lighting, shading, angles, and background that result in a work that is more than a functional work and qualifies "independently as a work of art".[7] In Satava v. Lowry, a notable Ninth circuit case discussing the threshold of creativity. the court found that the "selection of the clear glass, oblong shroud, bright colors, proportion, vertical orientation, and stereotyped jellyfish form" were "so commonplace" that the elements did not render the work protectable.[6] However, in Ets-Hokin v. Skyy Spirits Inc., the court found product shots of a Skyy vodka bottle that resembled many other product shots of a Skyy vodka bottles were protectable because Ets-Hokin made decisions about lighting, shading, angle, background, among other decisions, which together were "sufficient to convey copyright protection".[7] The court, however, "did not identify any artistic features of the bottle that [were] separable from its utilitarian ones".[7]

Individuals who take Zoom screenshots will likely qualify as authors because there are many creative choices involved in taking a Zoom screenshot and capturing a Zoom event. Individual participants may also qualify as authors if they make creative choices when creating their Zoom backgrounds such that they create a compilation or derivative work.

Since there are many creative choices available to individuals taking Zoom screenshots, most Zoom screenshots will qualify as minimally creative, but the scope of copyright protection in each screenshot will vary depending on the number of creative choices individuals make when taking the screenshot. On one hand, an individual who takes a screenshot at a particular moment, poses Zoom participants, and takes a screenshot of a particular group of screens, makes many creative choices and will have a broader copyright in their work because there are more distinctions between the idea of the work and the work itself. On the other hand, an individual who merely takes a screenshot of an entire Zoom screen without making any creative choices aside from capturing all of the individual Zoom screens has a thinner copyright because they are making fewer creative choices.

Zoom screenshots as natural phenomena[edit]

A Zoom screenshot can be compared to the "unique expression"[8] of a natural phenomenon because what takes place during a Zoom call occurs without a significant amount of human interference.[2]Courts protect "unique expression[s]" of natural phenomena but do not protect the natural elements themselves.[2] In Folkens v. Wyland, the natural phenomenon at issue was the crossing of two dolphins underwater. The court found that even though professional animal trainers posed the dolphins in an enclosed environment, the posing of the dolphins on its own was a natural element and thus not protectable expression.[2]

Individuals taking screenshots during a Zoom meeting can ensure they have a copyright in their Zoom screenshots by making many creative choices, such as varying which individual screens to include in their screenshot, the timing of the screenshot, as well as the particular facial expressions or participants' poses to capture.

Copyrighted material in individual participants' Zoom backgrounds[edit]

Individual participants may have ownership in their Zoom backgrounds because Zoom backgrounds may qualify as "derivative works" or "compilations". Whether a screenshot qualifies as a compilation or a derivative work depends on if the individual transformed the works in the screenshot or simply arranged them together.[9] McMahon v. Prentice-Hall, Inc. involved the compilation of allegedly infringing passages and photos in defendants' textbooks. In that case, the court held that an individual can hold a copyright in the "unique collection and arrangement" of a group of photos "to which the party does not have the copyright".[10] SHL Imaging, Inc. v. Artisan House, Inc. involved photos of frames which the plaintiffs claimed were derivative works. There, the court found that photos merely depicting frames are not derivative works because the photos "do not recast, adapt or transform any authorship that may exist in the frames".[11]

A participant who puts copyrighted works together in an original way to create their background, without transforming the works themselves, will have created a compilation and will likely have a copyright in the "selection and arrangement" of the works. An individual who alters or otherwise transforms a copyrighted work in order to include it as part of their Zoom background, or as their entire Zoom background, creates a derivative work and will likely have a copyright in their entire Zoom background. An individual who takes a screenshot of a participant's background that includes a copyrighted work will not need permission from the original copyright holder to prepare a derivative work if their use of the work is de minimis or qualifies as fair use.

De minimis copying of copyrighted material in Zoom screenshots[edit]

The de minimis standard is interpreted differently across courts. In the Ninth Circuit, a use is de minimis "only if the average audience would not recognize the appropriation".[12][13] In Newton v. Diamond, the court found that the unauthorized use of a three-note sequence transcribed in a musical composition would not be recognizable to the average audience and there was no substantial similarity between the allegedly infringing recording and the original.[14]This was because the three-note sequence was not quantitatively or qualitatively significant as indicated by experts who testified that the sequence was "merely a common, trite, and generic three-note sequence" and was, therefore, de minimis.[14]

In the Second Circuit, de minimis copying "can mean that copying has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying"[15] and "essentially provides that where unauthorized copying is sufficiently trivial, 'the law will not impose legal consequences'".[16] In Ringgold v. BET, HBO Independent Productions used a poster of an artwork in an episode of one of its sitcoms as a wall-hanging.[15] Some portions of the poster were shown nine times during the episode, between 1.86 to 4.16 seconds, and sometimes with the poster at the center of the screen.[15] While the poster was only shown briefly and out-of-focus, the court found the de minimis threshold had been crossed because the "colorful, virtually two-dimensional style" of the painting was identifiable.[15] The court found that the total of 26-27 seconds the poster was shown was quantitatively more than de minimis because the poster was clearly visible during each segment.[15]Qualitatively, the court found the amount shown exceeded the de minimis threshold because the "painting component of the poster [was] recognizable as a painting, and with sufficient observable detail for 'the average lay observer'".[15] In Davis v. Gap, the court found that Gap's use of Davis's "strikingly bizarre" eyeglasses in Gap's advertisement was not trivial and therefore exceeded the de minimis threshold.[16] In this case, the advertisement included a group of seven models wearing various accessories and Gap clothing, with the "central figure, at the apex of the V formation...wearing Davis's highly distinctive Onoculii eyewear".[16]

Whether the copying of copyrighted works included in participants' backgrounds is identifiable to the average observer or sufficiently trivial depends on several factors including the number of participants on the call as well as the number of copyrighted works in each participant's background. On one end, a court will likely find more than de minimis copying in a screenshot where there are only two individuals on a call and both use large paintings as their Zoom backgrounds. However, a court is unlikely to find more than de minimis copying when there are dozens of people on a Zoom call, who each have multiple copyrighted works in each of their Zoom backgrounds.

Fair use generally[edit]

Courts balance the following factors to determine whether a defendant can succeed on a "fair use" defense: (1) purpose and character of use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used, and (4) effect on the market. An individual will succeed on a "fair use" defense if a court finds, on balance, the factors favor the alleged defendant. Success on this defense means that there is ultimately no copyright infringement in the use, but is specific to the use at issue and may not apply to other reuses of the copyrighted work.

Purpose and character of use[edit]

Screenshots of Zoom events that include copyrighted works will likely satisfy the "fair use" purpose factor if it is apparent that the purpose of the Zoom screenshot is to capture the Zoom event. The court in Walsh v. Townsquare Media, Inc. found that the use of a screenshot of an entire Instagram post, which included a copyrighted photo, in an article was "reasonable" to satisfy the "purpose and character" element because the article was about the social media post itself.[17] However, the court in Graham v. Prince found that a screenshot of an Instagram post including a copyrighted photo was inappropriate in the context of an artistic work that did not materially alter the "composition, presentation, scale, color palette, and media" of the copyrighted work.[18] The purpose and character factor will weigh in favor of an individual who takes a Zoom screenshot for a purpose other than merely repurposing the copyrighted work, without significantly altering the work. Essentially, the more apparent it is that the individual took the screenshot for the purpose of capturing the Zoom event or another purpose, the more likely the individual taking the screenshot will succeed on the purpose and character factor.

Nature of the copyrighted work[edit]

In the Ninth Circuit, alleged defendants will succeed on a "fair use" defense "the more informational or functional the plaintiff's work".[19] In Wong v. Village Green, the court found that a nomination of a property to be designated a National Historic Landmark was a functional work, even though it was "likely the product of significant time and resources".[19]Similarly, in the Second Circuit the nature factor disfavors "more factual works".[20] In Infinity Broadcast Corp v. Kirkwood the court found that the plaintiff's broadcasting of music, advertisements, and other works in which the plaintiff held a copyright, together were creative enough for the nature factor to favor the plaintiff in a lawsuit where the plaintiff sought an injunction against the defendant who was retransmitting the copyrighted material through a Dial-Up system.[20] The nature factor will weigh in favor of an individual who takes a Zoom screenshot if the individual taking the screenshot captures informational works included in individual participants' Zoom background, a calendar or a bookshelf. The more plain and functional the copyrighted material captured, the more likely the individual taking the screenshot will succeed on the nature factor.

Amount and substantiality of the portion used[edit]

As for the amount and substantiality factor, copying will favor an alleged defendant if the amount copied is "reasonable" for the purpose of the copying.[21] In Mattel v. Walking Mountain Productions , the court found that the defendant's use of entire Barbie dolls and parts of Barbie dolls was reasonable "in light of his parodic purpose and medium used". The fact that less of the Barbie dolls could have been used did not weigh against "fair use" because using the minimum amount of copyrighted work possible is not required when creating parodic works. In Graham, the court noted that "verbatim copying of an entire copyrighted work militates against a finding of fair use" but "'is sometimes necessary' to effectuate a transformative purpose".[18] As such, the more a defendant transforms as a copyrighted work, the greater the portion of the copyrighted work they can use. The amount and substantiality factor will favor an individual who takes the screenshot for the purpose of capturing the Zoom event. An individual can reasonably copy the entire amount visible of a copyrighted work unless it is clear that the individual taking the Zoom screenshot did so primarily to capture a particular work or set of works included in one or more of the participants' Zoom backgrounds.

Effect on the market[edit]

The effect on the market factor will favor a plaintiff if the inclusion of a copyrighted work in a defendant's work will have a negative impact on the market for the copyrighted work or derivatives of the copyrighted work.[21] Courts will look "not only to the critical aspects of a work, but to the type of work itself in determining market harm".[21] In Mattel, the court found that the defendant's works could only be a reasonable substitute for "work[s] in the market for adult-oriented artistic photographs of Barbie" rather than the licensing market for art in general, as the plaintiff suggested, because qualifying the plaintiff's market as the licensing market for art in general would be against the public's interest. In Graham, the court found that a screenshot of a photo and the original photo could be market substitutes, so the effect on the market factor could not favor defendants at the motion to dismiss stage.[18]

The effect on the market factor will weigh in favor of individuals who take screenshots of multi-person Zoom meetings. A court would likely qualify the market for screenshots of multi-person Zoom meetings to be the market for event photos generally. As such, it is unlikely that owners of copyrighted works included in a Zoom screenshot would succeed on this factor since a court would likely find that it is not in the public's interest for copyright holders to monopolize the market for all event photos that include their works as part of the backgrounds used in the photos. However, if an individual participant uses a photo or painting as their Zoom background such that someone would recognize the work and it would be reasonable for them to consider purchasing the screenshot rather than the original work because the copyrighted work is clearly visible, a court will likely find the screenshot would have a negative impact on the market.

Zoom's copyright interest in Zoom's interface[edit]

Zoom's arrangement of individual screens appears to be the product of an automatic process generated by Zoom's technology, so Zoom does not appear to be making any independent, creative choices each time there is a Zoom meeting. Additionally, there are several cases addressing video conferencing technology under patent law. As such, the arrangement of screens themselves may be protected by patent law, but not by copyright law.

Under Apple v. Microsoft, the copyright protection in a graphical user interface is "thin" because companies are not permitted to get patent-like protection in the idea of an interface, but may have copyright in how they put together the ideas of an interface.[22] Courts, however, will evaluate interface components individually for copyrightable protection rather than the interface as a whole for creativity. As such, any copyright Zoom has in its interface will be in the individual components of its interface.[22]

An individual who takes a screenshot of a multi-person Zoom call will need to be careful to avoid crossing the de minimis threshold with respect to how much of Zoom's interface the individual includes in their screenshot. Some icons such as a list of participants and functional buttons like the red icon to hang up are unlikely to be copyrightable. However, there may be a thin copyright in how the icons are selected and arranged to create an interface that is distinctly a Zoom interface. Individuals taking Zoom screenshots only need to worry about Zoom's copyright in its interface if the portions of the interface captured are clearly identifiable as Zoom's interface or Zoom's icons, as opposed to any other video conferencing interface or icon.

Free culture and creative commons[edit]

"Free" works are works that all individuals are (1) free to use, (2) free to study, (3) free to make and redistribute copies of the information or expression, in whole or in part, and (4) free to make changes and improvements, and to distribute derivative works.[23]Free culture works are works that (1) use freely available source data, (2) use a free format (that usually is not protected by a patent), (3) do not have technical restrictions that would limit anyone's use of the work, and (4) must not be covered by other legal restrictions or limitations and, if covered by copyright, make use of existing legal exemptions that make the work unambiguously free.[23]

As discussed above, individuals who take a screenshot of a Zoom call may have a copyright in the screenshot if their screenshot meets the originality and creativity requirements. If the originality and creativity elements are met, then individuals who own the copyright in Zoom screenshots should be able to license them as free culture works unless the amount of individual copyrighted works captured in the Zoom screenshot exceeds the de minimis threshold or the portion of Zoom's interface captured is clearly identifiable as Zoom's.

Conclusion[edit]

An individual who takes a screenshot of a Zoom call will have rights to the screenshot if the elements of authorship, originality, and minimal creativity are met. These elements will likely be met if the individual makes some creative choices when taking the Zoom screenshot. Additionally, individual participants may have ownership in their Zoom backgrounds if their Zoom backgrounds meet the authorship, originality, and minimal creativity requirements. The screenshots can be licensed as free culture works unless the screenshots prominently feature an artistic background or similar copyrighted work in a more than de minimis fashion.

References[edit]