GIF stands for Graphics Interchange Format which refers to short 2-4 seconds video snippets on loop. They are widely used in the same form as emoticons, to express emotions in conversations, posts, memes, etc. These snippets are taken from a plethora of sources such as music videos, movies, news broadcasts, animated creations, etc. These audio-visual creations from which GIFs are derived from include both copyrighted works and works that are freely available in the public domain.
GIFs gained popularity within the past 5 years as numerous content creation companies used GIFs as a marketing strategy to establish an online presence. This motivated major social media platforms such as Facebook, WhatsApp, Twitter, Instagram, etc. to adopt integrated native GIF search mechanisms. This feature allows users of the platform to search for GIFs internally using the virtual keyboard through the database of GIF aggregating companies such as Giphy and Riffsy.
The stance on whether GIFs are infringing derivative works of the original longer versions of the snippets is yet be pondered upon. The issue has not been decided by the judiciary in any jurisdiction so far. The companies involved in collecting and providing GIFs have taken precautionary measures by availing the protection given to intermediaries under the Digital Millennium Copyrights Act, 1998 (DMCA). Hence, the question remains, can GIFs be protected under Copyright Law?
ARE GIFS COPYRIGHTABLE?
In order for any work to be protected under the copyright law, it has to pass the test of originality. Since a majority of GIFs are taken from other copyrighted works, they cannot qualify the test of originality as they are direct snippets of other works and do not involve any infusion of creativity. It could be argued that the act of choosing specific scenes for the creation of GIFs require some amount of skill and judgement, though this does not fulfil the requirements for copyright protection.
In terms of original GIFs that are created from scratch, copyright protection may be awarded according to the work created. The grey area, when it comes to protection is whether GIFs that are compilations of different scenes, or have editing and special effects qualify as original works or transformative works.
DO GIFs INFRINGE COPYRIGHTS?
The "fair use" test is applied to determine whether GIF's can be infringing material. The test contains four conditions that will be considered for measuring the level of "infringement" or "fair use".
The purpose and character of the use; commercial/ non-commercial use.
The nature of the copyrighted work.
The amount and substantiality of the portion used.
The effect of the infringing work on the original work's potential market.
Majority of the GIF's are not made for a commercial purpose but for mere expression and humour. GIFs are fully taken from an existing work, with some amount of editing in terms of adding subtitles, filters, etc could be involved in creating them. However, it is not necessary that such editing exist in all GIFs. They are, in no way, a replacement of the original work as their purpose and consumer base is different. However, this condition is arguable due to the risk of spoilers. The DMCA must be analysed to receive a wider understanding copyright infringement by GIFs.
ANALYSIS OF THE DMCA WITH REGARDS TO GIFS
The DMCA is divided into five titles namely:
1. WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,
2. Online Copyright Infringement Liability Limitation Act,
3. Computer Maintenance Competition Assurance Act,
4. Miscellaneous provisions and Vessel Hull Design Protection Act.
The second title is majorly applicable for the protection of GIF aggregator companies.
The introduction of the Online Copyright Infringement Liability Limitation Act caused an amendment to the US Copyright Law in the form of Section 512. This provision limits the liability of an Internet Service Provider (ISP) in situations where the service provider performs any of the following activities in relation to the copyrighted work:
(1) Transitory communication,
(2) System caching,
(3) Storing information for directing users or,
(4) Is an information location tool.
In no circumstance will an internet service provider, who carries out any one or more of the above mentioned activity be liable for monetary damages. Injunctive and equitable relief maybe sought under specific circumstances mentioned under Section 512(j).
In order to reap the benefit of limited liability under the DMCA and Section 512 of the US Copyright Code, an entity has to qualify as an “internet service provider”. This term is defined under Section 512 (k)(1)(A) as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received”.
An internet service provider who comes within the definition provided must then fulfil two conditions mentioned, namely: (1) it must take appropriate measures to terminate the accounts of those users who are repeat infringers and (2) must provide for a non-discriminatory, comprehensive and accessible system for copyright owners to challenge and take down any content made available by the provider. GIF aggregator companies such as Giphy have registered themselves as intermediaries under the DMCA.
Hence it is safe to say that GIFs are capable for being infringing works, but it would have to be determined on a case-to-case basis.
GIFs are no more limited to non-commercial use. There are many companies and business models built on the collection, creation and dispensation of GIFs. It can be observed that corporate entities dealing with content creation and GIFs are now raising millions of dollars for expanding their businesses. Giphy, for instance had raised over 72 million dollars from the public and existing shareholders for the same purpose.
Copyright owners, on the other hand are keenly observing this massive influx of money and the possible forms money generation by enforcing their copyrights over such content creators and aggregators. As time passes, there is no doubt that we will witness numerous copyright infringement litigations and suits. The sport broadcasting industry is spearheading this change. The DMCA and the protection awarded to intermediaries have played a vital role in limiting the amount of copyright litigation in this subject matter as there is a severe lack of financial motivation for copyright owners to go after individual GIF creators.
In conclusion, it's clear that GIFs, even if used or created with the purest of intentions, can result in copyright infringement.