Animated GIFs and Copyright Law
Few things convey emotion like an animated Graphics Interchange Format (GIF), and with almost 23 million GIFs posted to Tumblr everyday,1 it’s needless to say that the file format is immensely popular on the Internet. To further justify this claim, social media giants Twitter, Facebook and Tumblr have all integrated GIF-search capabilities into their messaging platforms.2
The GIF is an image format that allows for very short, downgraded video clips. They are used online as a harmlessly giving depth to one’s expression. While increasingly popular, GIF files are created using excerpts of copyrighted content, which could possibly be a violation of the author’s rights in such material.
Importantly, their use is typically not commercial in nature. However, their use stimulates debates on the Internet in a manner that plain text cannot do. There is no case that states whether creating a GIF made from copyrighted material is or is not copyright infringement. Even though there has not been a court ruling on the subject, it seems to depend on whether or not the usage of the GIF falls under the doctrine of ‘fair use.’
To determine fair use we need to consider not only the nature of the GIF, but also who created it and its intended purpose.3 Generally speaking, something is considered fair use when the original material is used for a limited and ‘transformative’ purpose, such as parody. If the particular use qualifies as a fair use, it would not be considered an illegal infringement.4 These determine fair use we need to consider four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; (4) the effect of the use upon the potential market for or value of the work.5
Indeed, the trouble lies in using someone else’s original content to create and share a GIF. The copyright owner has no ability whatsoever to control derivatives of their work, where or how their work is shared, nor over their right to receive proceeds.6 But the fair use doctrine creates a legal opening for copyrighted material to be changed and repurposed, as long as the new use derivative of the original and does not create economic competition for the copyright holders. Thus, under US law, GIF-providers would be likely shielded from liability for copyright infringement.
This is certainly an issue that could be litigated soon; hopefully, some clarity will be brought in the coming years.
US Copyright Fair Use Index, available at: http://copyright.gov/fair-use/[https://perma.cc/6VW4-JPWE].↩