Developers of software intended as middleware or to interface with other programs often find it desirable to use screen shots of third-party programs in the user documentation, packaging or marketing materials for their products. The question then typically arises of whether and to what extent the developers can use those screen shots while remaining conscientious of those third parties’ IP rights and avoiding legal exposure arising from such use.

In the 2000 case of Sony Computer Entertainment America v. Bleem, the Ninth Circuit Court of Appeals addressed the question of whether it constitutes copyright infringement for a developer to make unauthorized use of video game screen shots in advertising materials for a software emulator that allows those video games to be played on other systems. In its opinion, the court looked to the statutory elements of a fair use defense to determine that the developer’s use did not constitute infringement.

In determining whether use made of a work constitutes a fair use the Copyright Act requires courts to consider:

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

(b) the nature of the copyrighted work;

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

(d) the effect of the use upon the potential market for or value of the copyrighted work.

With regard to the first factor, the court specifically noted that “the commercial use of copyrighted material is not presumptively unfair; rather, commercial use is but one of four factors that we must weigh.” The court further stated that Bleem’s use of the screen shots in comparative advertising (showing purchasers how the games appear when played via the emulation software) “redounds greatly to the purchasing public's benefit with very little corresponding loss to the integrity of Sony's copyrighted material.”

With regard to the remaining factors, the court held that the fact that “the copyrighted work and the copies are both commercial video game products…neither supports nor hurts [defendant's] claim that a fair use defense is appropriate here,” and that a screen shot is “an insignificant portion of the complex copyrighted work as a whole,” for which there is no market. The court went on to state that, even if there were a market for screen shots:

“Bleem's use of a handful of screen shots in its advertising will have no noticeable effect on Sony's ability to do with its screen shots what it chooses. If sales of Sony consoles drop, it will be due to the Bleem emulator's technical superiority over the PlayStation console, not because Bleem used screen shots to illustrate that comparison.” 

Thus, under the facts of the case presented to the Ninth Circuit, and possibly under a wide variety of other fact-patterns, it is possible that use of screen shots in comparative advertising or in user documentation (which typically would present fewer opportunities for disputes over unauthorized use) will not expose a developer to significant legal exposure. However, it is important to keep in mind that trademark or other IP rights may remain an issue when using third-party screen shots, and, notwithstanding the Ninth Circuit’s holdings in the Bleem case, the possibility of copyright infringement under different facts remains. Therefore, it is important to consult with an attorney before proceeding with any creation or distribution of materials incorporating screen shots from software published by third parties.