13 Sep Is that even legal? Animated GIFs and copyright law
Bloggers and meme-fanatics alike will admit that very few things can convey emotions, thoughts, and processes like animated GIFs. With 100 million daily users on GIF database and search engine, Giphy, and one billion GIFs sent on the platform every day, it’s needless to say that the internet has become obsessed with the file format.
Animated GIFs and business communications
Twitter and Facebook, which have both integrated native GIF search, help GIFs spread like wildfire, and sites like Buzzfeed have built content marketing empires by using animated GIFs in their infamous listicles.
GIF use has gone above and beyond social media and listicle use, however. Brands and businesses are utilizing animated GIFs to convey emotion as well. In addition, brands can use GIFs to:
- Make a call-to-action or click-through more eye-catching
- Provide a quick demonstration
- Display content that doesn’t require the viewer to click (compared to a video, for example)
- Create more interesting and engaging presentations
- Illustrate facts, figures, and processes in a way that is easier to understand
Animated GIFs and copyright law
The trouble with using animated GIFs for commercial purposes lies in using someone else’s original content. This usage undermines the copyright owner’s ability to control derivatives of their work, where or how their work is shared, and their right to receive proceeds.
While individuals can usually make and share GIFs with little concern for repercussions, companies must be aware of copyright restrictions.
There is no standing legal decision that specifically determines whether GIFs made from copyrighted material qualify as infringement. When there is a dispute over a GIF and its original creators, it all comes down to the doctrine of fair use.
Whether or not a GIF can be used freely under fair use is determined by four factors:
- Context – is it for commercial, nonprofit, or educational purposes? Uses that aren’t tied to revenue or profits are typically the safest.
- Nature – is the content creative or factual? Unpublished or published? Copyright law extends the greatest protections to creative and unpublished works. (Don’t steal gifs from artists. Or Disney. No really don’t do it. Trust us.)
- Quantity – How big a chunk of the source material content portrayed in the GIF. A two second scene from a 90 minute movie does not use a substantial portion of the original work.
- Economical value – Does the GIF take away from the monetary value of the original work? It’s hard to imagine any viewer would substitute a gif for an actual movie.
Generally, something is considered fair use when the original material is used for a limited and “transformative” purpose, such as commentary, criticism or parody.
GIFs with famous faces
This notion of fair use becomes even more complex when a GIF features a celebrity.
According to Adweek: “…the only way to post an animated GIF of a celebrity on your business page without risking legal trouble would be to get the permission of everyone featured in the clip, the copyright holder of the original recording and (just to be safe) the person who actually made the GIF.” In absence of such permissions, content sharers always risk receiving a cease and desist order.
Individual celebrities also have the option to invoke so-called “right of publicity” laws that allow public figures to control how their image is used, according to Fortune‘s Jeff John Roberts.
Despite the absence of any clear legal decision on this matter, social media networks have already adopted measures to protect themselves. The Digital Millennium Copyright Act (DCMA) ensures that social media sites who host GIFs are not held responsible as long as they have a system to report and remove content accused of copyright infringement.
For you, this means that the DCMA will hold you liable for sharing copyrighted GIFs, rather than the platform on which you shared it. Even if you include attribution or a link back to the creator’s website, you can still be held liable for copyright infringement.
Modicum Original GIF
Guidelines for GIFs and fair use
So you have the background, but you’re still wondering what this means for brands looking to use GIFs as part of their content strategy.
As a general guideline, your best bet is to:
- Get permissions from the copyright holder and actors who appear in the GIF.
- Credit the original GIF creator when possible. (But remember, this doesn’t necessarily excuse liability if you don’t have permission!)
- Avoid using protected gifs to generate revenue or profits
- Consider using an original Modicum-designed GIF from Giphy. Go ahead, we officially give you permission so long as you don’t pair them with illegal or offensive content.
- Produce your own GIFs, or let us help you! The professional motion designers at Modicum can create amazing, custom animated GIFs to elevate your brand communications.
Reach out to us anytime.