This is obviously a tricky situation, and IANAL, but here's my two and a half cents...
(Note: since SE is a US based company, I am using US laws/policies)
Is what we're doing considered fair use?
From the US Copyright Office's page on Fair Use:
Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:
(1) Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
Of course, even the Copyright Office acknowledges that the criteria are vague and subject to interpretation and discretion on a case-by-case basis. Stanford University has a nice summary of the definition
In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.
Commentary and Criticism
If you are commenting upon or critiquing a copyrighted work — for instance, writing a book review — fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:
- quoting a few lines from a Bob Dylan song in a music review
- summarizing and quoting from a medical article on prostate cancer in a news report
- copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
- copying a portion of a Sports Illustrated magazine article for use in a related court case.
The underlying rationale of this rule is that the public reaps benefits from your review, which is enhanced by including some of the copyrighted material. Additional examples of commentary or criticism are provided in the examples of fair use cases.
Again, IANAL, but what we're doing feels like it would generally fall under the Fair Use guidelines.
We are presenting information/assets for an criticism and commentary, for an educational, if fun, purpose. So long as sources are attributed as best we can, and no false claims of ownership are made, I think we're generally in the clear.
Of course, should a legitimate copyright owner feel differently, we would be morally and legally obligated to required to obey their wishes.
But... this material was illegally obtained!
That, of course, is the real issue here, right? Let's look back at some related discussion: Should We Allow Links to Sources of a Questionable Legal Status?. But that's specifically about linking to illegal material. That should never be done.
But I think there's a stark difference between linking TO a source, which actively facilitates piracy, theft, and copyright infringement, and using that source as a factual source.
Do we really know if any of our online sources were legally obtained?
Do we know that the scans on Wookieepedia were legally obtained, and not just taken from a pirated file? No, and it's not really crucially important, IMO.
Disclaimer: It's always important to purchase/acquire sources legally, it's just less important to me whether or not the specific images posted on the site came from a legally purchased copy or not.
Additionally, you have no idea whether or not the The Force Awakens novelization I've been referencing lately was illegally obtained (note: my copy is completely legit, having been purchased from Amazon).
But there's no way that these screencaps came from a legally obtained source!
I personally fail to see a difference. As Mike Edenfield noted, we post screencaps from shows all the time, including shows that haven't been released for purchase yet.
The final measure for me comes in regards to the TOS
Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party,
By posting such screencaps or quotes, we are not encouraging or enabling theft or copyright infringement.
Since what we're doing would all likely fall under the Fair Use Doctrine, I believe posting screencaps/quotes from illegitimately acquired sources is OK, so long as we do not link to said sources.