By Linda Kimalel**

Richard Prince Lewis Appropriation Art Gallery Instagram Copyright Photo
Image Credit: www.businessinsider.com

The terms and conditions of most social media sites stipulate that the users reserve the right to determine who has access to the content they upload. Therefore the extent of access depends on the privacy settings and the services that the user installs.

However, with the social media era came the screenshot functionality that allows one to take an image of the display on the phone or its pre-existing print screen. The functionality allows users of the social media platform to obtain the image uploaded by another user without permission. Which brings the question, are we undermining the creative works that the law protects by downplaying the screenshot copyright infringement on social media?

The copyright infringement clauses within the terms and conditions of social media apply to the content that has been uploaded on the social media site but does not expressly prohibit the users from sharing screenshots. Especially since there is no way of knowing when one’s content has been obtained via screen shot (except Snapchat) unless it is displayed elsewhere.

In the recent years, screenshots have been used as appropriated art or as incidental use. Appropriation in art is the use of pre-existing images with minimal alterations to the original image. Earlier this year, Richard Prince, an appropriation artist in New York was sued for copyright infringement after he reproduced images obtained from instagram as screenshots and sold the portraits in an art gallery. The photo of a Rastafarian smoking a joint was obtained from Donald Graham’s website. Furthermore they were obtained without Graham’s permission. Richard’s pieces sold for up to $100,000 at an art fair.

Appropriation in art is acceptable to the extent that the author consents to the use of the creative work, which was not done in the Richard Prince. Screenshots have made it easier for copycats to access the creative works of others and downplayed the significance of protecting one’s copyright. This was illustrated when Prince gave a comment regarding the legal implications of his work in 2011: “Copyright has never interested me. For most of my life I owned half a stereo, so there was no point in suing me, but that’s changed now and it’s interesting … So, sometimes it’s better not to be successful and well-known and you can get away with much more. I knew what I was stealing 30 years ago but it didn’t matter because no one cared, no one was paying any attention.” From this statement, Prince makes an assumption that in his years as an appropriation artist, as he knowingly used creative works without permission, that it was easier to steal people’s work before gaining recognition in the industry. This suggests that such form of copyright infringement is overlooked unless it involves someone who has much to lose.

As for incidental use of screenshots, it is only plausible if the screenshot does not amount to an exploitation of the creative work for profit. Therefore in the matter of a screenshot image being used for commercial purposes such as promotion or advertisement, shall not amount to incidental use. In an American case  Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539,
562 (1985), the court stated that in using a screenshot for advertising, “noncommercial uses will weigh in favor of a finding of fair use while commercial uses will weigh against fair use.” the supreme court further enunciated in the case Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584
(1994) that screenshots should constitute fair use since the illustrated fair use purposes are conducted for profit.

Whereas most of the fair use defences are for profit i.e. scholarship or research, the court stated in the Harper & Row case, “crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”
If screenshots are used in the context of fair use, there are three things that have to be considered as ruled in the Cariou v. Prince, 784 F. Supp. 2d 337 – Dist. Court, SD New York 2011 case:

  1. The nature of copyrighted work should be tangible material and not an idea.
  2. The purpose and character of use. One has to prove that the screenshot was taken for criticism, education, research or news reporting.
  3. The effect that the screenshot will have on the original image.

 

There ought to be globally acceptable regulations  on the use of the screenshot function on social media platforms to protect copyrighted work. If those  Snapchat has devised a way of letting the user know when one of their followers has taken a screenshot, which is a step further than what other social media sites have done in a bid to protect their users’ copyright, however that is not enough. Social media companies should take on the responsibility of policing what users do on their sites, just as they have been when it comes to the content posted on their sites. The copyright user may not have malicious intentions when taking a screenshot or may do it out of ignorance, nonetheless ignorance is not a defence.

The globally acceptable regulations ought to be as a result of harmonization of the various copyright laws across the world since social media is not limited to only one region but accessible across the world.

The answer to the question that set the ball rolling, screenshots have definitely been downplayed as copyright infringement on creative work that the law was created to protect.

**Linda Kimalel is a Bachelor of Laws (LL.B.) student at Strathmore Law School.