08 May Is that even legal? Animated GIFs and copyright law
Bloggers and meme-fanatics alike will admit that very few things can convey emotion like animated GIFs. With almost 23 million GIFs posted to Tumblr everyday, it’s needless to say that the internet has become obsessed with the file format.
Giphy, the web’s foremost GIF database and search engine, serves more than 1 billion GIFs per day to more than 100 million Daily Active Users. Twitter and Facebook, which both have integrated native GIF search, help these GIFs spread like wildfire, and sites like Buzzfeed have built content marketing empires by using animated GIFs in their infamous listicles.
Jeremy Liew, an early Giphy investor, explains the format’s universal appeal: “GIFs enable users to avail themselves of the entire catalog of popular culture to help express themselves. Art, TV, movies, memes, all become part of the alphabet, enabling richer, funnier, more contextual, more personalized communication than ever before.”
Animated GIFs have become so popular that even politicians are getting in on the fun. Last year, the House Judiciary Committee published a listicle (or “gifsticle”) about President Obama’s immigration policies, complete with GIFs from films like Pitch Perfect and The Little Mermaid.
Pundits debated whether this appeal to the youth demographic was unbecoming of an official legislative body. But as The Wolf of Wall Street said…
Image credit: Paramount Pictures
The answer to that question is murky…
Animated GIFs and copyright law
The trouble 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 it’s original creators, it all comes down to the doctrine of fair use.
Fair use is determined by the nature of the GIF, who created it and its intended purpose. Generally, something is considered fair use when the original material is used for a limited and “transformative” purpose, such as commentary, criticism or parody. According to Jeff John Roberts of Fortune, GIFs can be considered “transformative” under copyright law because they do not undermine the market for the original work: “No one, for instance, is going to watch a Star Wars GIF instead of the original movie.”
Attorney Rich Stim says the judges and lawmakers who created the fair use exception did not want to limit its definition. “Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.”
These four factors are all taken into account when determining fair use:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit or educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for or value of the copyrighted work.
So the doctrine of fair use creates a legal opening for copyrighted material to be remixed and repurposed, as long as the new use is derivative of the original and does not create economic competition for the copyright holders.
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.
This issue is especially prominent in the sports world. Blogs such as Deadspin and SB Nation often turn highlights from professional games into GIFs for their own websites. The leagues—and television networks that pay hefty licensing fees to broadcast those games in the first place—understandably take issue with this practice.
Some leagues, including the NFL and MLB, allow sports-GIF publishers to evaluate copyright infringement complaints on a case-by-case basis. The publishers most often comply with takedown requests but can invoke fair use if they believe it applies. Other leagues, including FIFA and the International Olympic Committee, strictly enforce a zero tolerance no-GIF policy.
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 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.
Giphy’s Director of Marketing, Simon Gibson, told Fortune that “major artists, studios, sports leagues, and even the National Archives have come to trust Giphy as a steward of their content. He did not, however, elaborate as to what specific copyright arrangements the company has developed with the entertainment companies, which Giphy describes as partners.”
Guidelines for GIFs and fair use
I bet you’re wondering what all this means for brands looking to use GIFs as part of their content strategy.
As a general guideline, your best bet is to:
- Get written releases from the copyright holder and actors who appear in the GIF.
- Link to or embed content that someone else uploaded and let the site you link to deal with the liability. See the above Leo GIF. In this case, crediting the original creator is best practice.
- Design original GIFs, like the ones shown throughout this page. That way people will need to ask YOU for permission to share.
Don’t have the chops to make high-quality GIFs on your own? Professional motion designers can create amazing animated GIFs that you can share with abandon.