To preface this post, I am not a lawyer, I am not a copyright expert. I did play one on television once and I took a few copyright classes in college. So, while my information is researched, there are smarter and more informed people then me…just saying.

Is an Animated Gif Legal?

Most people will say that an animated gif falls under the FAIR USE. The people that aren’t saying anything – well they are saying that we are pushing the line…that most of us don’t even know what Fair Use entails.

What is Fair Use?

ryan gosling animated GIF from Giphy. Source.

Fair Use is a doctrine from the U.S. Copyright Office – so if you aren’t from the U.S. you might want to check out your own domestic laws and regulations. But, since most of the gifs that we use originate from U.S. movies and television – it falls under U.S. Copyright.

The doctrine states that reproduction of a “work” is considered fair, if it is used within the following parameters: “criticism, comment, news reporting, teaching, scholarship, and research.”

And the big caveat in this rule is this statement  (from copyright.gov): “The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. ”

So, basically – it is up to the copyright courts to decide later on – after the infringement has taken place – whether or not your animated gif is an infringement of copyright. Because gifs like the one above are taken from a broadcast – that is a copyrighted work.

Frustrated Yet?

This grey type of law is why most people urge brands and companies away from using animated gifs. Brands like UFC have threatened to sue over animated gifs – but the cases were based off the fact that companies were using the clips for profit – and it wasn’t that they were going after everyone that ever made a UFC gif. Just a big company. If you are a large brand or company that is making money off of using the gifs – then it is recommended that you stay away from using them.

But bloggers just using the images to add emotion to their posts…?

This should reasonably fall under fair use.

  1. Bloggers are using them in a non-commercial way
  2. They are usually used for commentary
  3. The gifs are only seconds of the full copyrighted work
  4. The gifs are usually of low quality
  5. The use of the gif is not to drive any profit

Most posts and forums that argue animated gifs agree – they fall under Fair Use. This is substantiated by the fact that no one has yet to bring a case before a jury regarding Copyright infringement. And until that happens, it’s more of a wait and see type of environment. If you scour the net – the majority of intelligent animated gif debaters are of the opinion that at some point BuzzFeed will be the recipient of said suit. Stemming from the fact that BuzzFeed uses animated gifs like no other outlet and usually in a not so flattering way. They also MAKE A LOT OF MONEY doing this, in the millions and millions of dollars range. They are profitting off of their supposed “fair use” – so defining it as social commentary – which it technically is – but that social commentary is providing them with profit. Very slippery slope. But no lawsuit is forthcoming. They continue to make money and use animated gifs.

As a wee Blogger – will the first every Animated Gif copyright case come down on you or any one of of us? I can confidently say, most likely no.

The simple fact that it is a grey area, within the Fair Use doctrine, protects you to a certain extent – the other fact – that you are just a blogger – even the biggest of us do not come close to sites like BuzzFeed and if a case of this nature is going to make it to the courts – it will probably be a landmark case. After that happens – grey will fade to white or black and we’ll know for sure. And as time goes on – sites like Tumblr and now Twitter – encourages the use of animated gifs, only strengthening “free-for-all” animated gif mentality. So what does that say about the if animated gifs are legal or not? Who the hell knows – so…Carry on children. Carry on.

And have fun with your animated gifs.

How about some rules to keep in mind when using animated gifs – all suggestions of course, just to further reduce any infringement:

  • Credit Your Source
  • Only grab Animated gifs from Gif sharing sites, like giphy
  • If you can’t find the right gif – make them yourself!

 

bryan cranston animated GIF (source)

Where did I scrounge up all this information and reinforce my opinion? Here are my sources:

  1. Reddit Post – Can a GIF be considered as a copyright infringement?
  2. Say Hello to Animated GIFs on Twitter
  3. Do Animated Gifs Infringe on Copyrights?
  4. Zuffa & UFC – No Animated Gifs of UFC 172 please
  5. What journalists need to know about animated GIFs — really

  6. >Why Brands Should Be Wary of Animated GIFs

  7. U.S. Copyright.gov – Fair Use