GIFs and the Fair Use Doctrine

By Delaram Yousefi, J.D. Class of 2017 Touro Law Review  Staff Member

Graphics Interchange Format (“GIF”) is a graphic image file that is “animated by combining several other images or frames into a single file.”[1] Animated GIFs are primarily used by internet users to help them convey creative and entertaining responses to digital content that could not be expressed by using simple words alone.[2] GIFs are incorporated in several different ways as they appear throughout many online articles and are heavily utilized in social media messaging platforms. The vast majority of GIFs are short clips taken from copyrighted comedy or reality TV shows, animated sitcoms, talk shows, and even music videos. Thus, the creator of the underlying works that are featured in these GIFs may bring a copyright infringement action against the alleged infringer—the creator of the GIF— for violating the author’s exclusive rights to his or her content. Although there is no case law to support how the courts would decide this particular issue, it is very likely that the courts would hold in favor of the alleged infringer based upon the “fair use” defense.

Once an author has received copyrighted protection for the material that she has created, she is given exclusive rights to these works. This means that she has the right to be compensated when an infringer uses this material without her permission. However, an author’s exclusive rights are not unlimited. For instance, the fair use doctrine allows others to use copyrighted material without the consent of the original author. To determine whether the fair use defense has been established, the court must analyze the following 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; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”[3] Since several of these factors are broken down into additional subfactors, it is essential to examine each of these factors in further detail.

The first factor is divided into the following two subfactors. The court must first analyze whether the use of the secondary work is either for commercial or non-profit educational purposes. It must next determine whether the new work is “transformative” by looking to see whether the secondary work altered the original work by furthering its purpose or by adding a new message to it.[4] GIFs are freely accessible on most popular social media platforms and there is no compensation required to use these features. GIFs have no sound and are automatically played in a continuous loop. Moreover, they are sometimes accompanied by a group of words to further illustrate a specific expression being conveyed by an internet user. Since these GIFs will not likely be considered commercial in nature, this factor will weigh heavily towards the creator of the GIF. Furthermore, these types of alterations to the original content would likely be considered transformative because it adds enough new meaning to the original work to establish fair use.

The second fair use factor evaluates whether the nature of the copyrighted work is creative or factual, and also whether it is a published or unpublished work.[5] Within this very broad spectrum, an author has a much greater chance to shield his or her work against a fair use defense when the work is a creative published work rather than an unpublished biography. Since the majority of GIFs on the internet are based on creative published works, courts will have a difficult time favoring the alleged infringer under this factor. However, as further discussed below, when the court examines this factor in conjunction with the other three factors, there will be a significant preference towards finding for the alleged infringer.

The third factor for fair use utilizes the “quantitative and qualitative evaluation” to examine the portion of the copyrighted work that was used in respect to the entirety of the original work.[6] It is important to note that if the alleged infringer uses only a small portion of the author’s work, but that small portion is considered to be the “heart” or the main aspect of the entirety of the work, then the court will most likely find in favor of the original author.[7] GIFs, however, are only a few seconds long and are virtually incapable of capturing the heart of the original author’s work. For instance, if the court was to compare a GIF that lasts for only a few seconds to an original work—a work that could range in duration anywhere from three minutes for a music video and up to three hours for a movie—it would have a difficult holding that the two-second GIF infringed upon the “heart” of these longer works.

The fourth and final factor for fair use looks at the damage that the use of the author’s work will have on the market. There must be evidentiary proof that the use is harming the market or that such continued method of use will negatively affect the potential market.[8] It is unlikely that an author or a creator will have enough evidence to prove current or future harm caused by GIFs. Their intended use is to last no more than a few seconds, as its main purpose is to demonstrate a certain expression or reaction. After it has fulfilled its purpose, there is no further reason for its use. Thus, it has not harmed the author in any way. It could even be argued that these GIFs actually help to promote the shows and music videos featured in them. As people relate to these clips, they are more likely to start or continue watching that specific show. This trigger has a positive benefit for the author.

Since the ultimate purpose of the use of GIFs is to demonstrate a certain feeling, expression, or reaction, all four factors will ultimately favor the alleged infringer. Courts have not yet begun to tackle the issues that may arise from the use and share of GIFs, mainly because GIFs are new to the internet and social media world. However, the day will come when authors of a copyrighted content will demand compensation for the material being used on the internet without their consent. This issue may not arise directly out of the use of GIFs, but it may be based on similar applications with a comparable purpose. Thus, courts should consider the same type of analysis in determining whether a certain application satisfies the factors of the fair use doctrine.

[1] David William, What is a GIF?, Small Business trends, (Mar. 8, 2016), https://smallbiztrends.com/2016/03/what-is-a-gif.html.

[2] Id.

[3] 17 U.S.C. § 107 (1992).

[4]Blanch v. Koons, 467 F.3d 244, 251 (2d Cir. 2006).

[5] Blanch, 467 F.3d at 256.

[6] Wright v. Warner Books, Inc., 953 F.2d 731, 738 (2d Cir. 1991).

[7] Harper & Row, Publishers v. Nation Enters, 471 U.S. 539, 565 (1985).

[8] Rogers v. Koons, 960 F.2d 301, 312 (2d Cir. 1992).

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