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.

According to Mike Isaac at NY Times, “[GIFs] have become a mainstream form of digital expression, a way to relay complex feelings and thoughts in ways beyond words and even photographs, making them hugely popular with young audiences who never leave home without their smartphones.”

Sites like Buzzfeed have built content marketing empires by using animated GIFs and social giants Twitter, Facebook and Tumblr have all integrated native GIF search capabilities into their mobile apps and messaging platforms.

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…

Animated GIFs & Fair Use: The Wolf of Wallstreet "Was This Legal"

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 Attorney Rich Stim, 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.

Original GIF created by Propoint Motion Designer Natalie Z.

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.

Despite the absence of any legal decision, social media networks have already adopted measures to protect themselves, while owners of copyrights attempt to counter the spread of their content. 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.

Guidelines for GIFs and fair use

I bet you’re wondering what all this means for brands looking to use GIFs in their content marketing.

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.
  • Make your own original animated GIFs, like the one above (Thanks, Natalie). 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? Our designers can create original visual content that you can share with abandon.

Michelle P.

Written by Michelle P.