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Q: Using altered images captured from DVDs on my free website ( Answered,   0 Comments )
Subject: Using altered images captured from DVDs on my free website
Category: Business and Money > eCommerce
Asked by: dwood1999-ga
List Price: $4.50
Posted: 30 Oct 2002 20:39 PST
Expires: 29 Nov 2002 20:39 PST
Question ID: 93892
I want to use still images from Hollywood movies on my web site.  I
want to make a game where I alter the still shot to not include the
actors heads (remove them in Photoshop) and player will guess
the movie the scene is from.  Nothing here is original, the still
shots are from movies, but altered by me, and the idea for the game
came from an email I got by a coworker.  Is it legal for me to create
this without permission from the studios, using the altered
still-shots?  If not, then I'd have to
assume a site like which has a library of stills from
popular actresses from Hollywood movies, that that site also has to
have permission, if not how is that site different from mine in
regards to the law?
Subject: Re: Using altered images captured from DVDs on my free website
Answered By: josh_g-ga on 30 Oct 2002 22:26 PST
Hi dwood1999,

The legality of copying something which you do not have copyright of
is subject to court decisions and very dependant on the situation.  So
I'll warn you ahead of time that this information can, at best, give
you a good estimate of how well the law would support your case. 
Also, I'm assuming you're a resident of the US and dealing with US
copyright law.  If not, just clarify your question to say what country
you're in.  And while I'm at it, I'll start off by mentioning that I
am not a lawyer, and the following is based on some quick research and
my own understanding of copyright law.

That aside, the key difference (if there is one) between your
situation and that of websites with movie stills is how they are
considered under Copyright Fair Use law.  US copyright law allows for
exceptions where copyrights are considered fair use, and weighs such
exceptions on a number of factors.  These are:

"1) the purpose and character of the use, including whether such use
is of commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work;

3) amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the
copyrighted work."*

"The distinction between “fair use” and infringement may be unclear
and not easily defined. There is no specific number of words, lines,
or notes that may safely be taken without permission. Acknowledging
the source of the copyrighted material does not substitute for
obtaining permission."*

* U.S. Copyright Office, Fair Use

The handful of major areas where the Fair Use law applies the most are
criticism, comment, news reporting, teaching, scholarship, and
research.(1)  The example you gave of movie stills on a website would
most likely fall under either criticism or comment.  At least three,
if not all four, of the main considerations listed above would support
such a website.

1) The site, I presume, is non-profit.
3) The stills from the movie could be considered quite insubstantial
portions of the entire movie.
4) The stills would be very unlikely to reduce the value of the movie
(unless they gave away the ending, or ruined it in some similar way).

Your game concept would have many similar considerations under Fair
Use law, and so may also be considered exempt.  A key difference would
be if you tried to sell the game - from my understanding, you'd have
very little hope of being found exempt under Fair Use if you were
selling the game.

Assuming you'd give the game away for free (or integrated it into a
website, which seems a logical medium for your idea), you could argue
that your game falls under Fair Use as an example of criticism or
comment.  You would have similar leverage of the 1st, 3rd and 4th
considerations given above.

Now, a more pragmatic point to keep in mind is that all of these
arguments are open to being interpreted in court.  That is, a movie
production company could still file a lawsuit if they saw your game as
abusing their copyright.  This could result in the headache of having
to go to court, and paying for legal representation.  Copyright
holders, especially large corporate ones, have often taken the
approach of opposing any seeming copyright infringement, since to let
one infringement slide weakens their case for other later
infringements.  So if you're a borderline case, it may be best to
attempt to get permission of the copyright holders for your usage,
rather than face the headaches of a lawsuit.  But again, I'm not a
laywer and am only offering layman's advice on these options.

Bitlaw - Fair Use in Copyright

Copyright Website - Fair Use

Search strategy used:

copyright fair use

Good luck with your game!
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