Are GIFs Subject to Copyright?
Yes, like any original creative work GIFS are subject to copyright. But in practice, their lawful use is a slightly more complicated issue.
Let me explain.
GIFs as we well know are an image format which has become popular through their use in sharing short repeating animations. GIFs exist within the broader culture of “memes” which are now a staunch part of internet conversation. Alongside memes, GIFs are especially notable in their versatility with their meaning often defined not by their content but the context in which they are shared. As such they are most commonly used on social media and messaging platforms as a means to react to a piece of content posted by someone.
Crucially, the content of GIFs that are widely available (e.g. through integrated search engines such as GIPHY) tend to range from snippets of existing copyright material (e.g. a short sequence from a film or similar motion video) or an original animation.
In each case, the GIF is either itself an original creation subject to copyright, or derived from pre-existing copyrighted work. This presents a unique problem in relation to the legal use of GIFs, as it may be argued that they contain unlicensed copyright-protected material. As such, in principle, freely sharing GIFs could legitimately draw the ire of copyright holders.
Furthermore, it remains that there is no practicable way to license the use of GIFs for the purposes of commercial use.
So what is a commercial entity to do to mitigate the risk of a copyright dispute emerging from the use of GIFs – given the current circumstances? With sharing GIFs an incredibly widespread practice. what gives?
The Calm before the storm?
As it stands, there is little to no case law surrounding the use of GIFs.
This means two things:
- Copyright owners of material in GIFs are not currently attempting to enforce their copyright in original material within GIFS
- No test case exists defining the extent to which the owner claims copyright over GIF material
Sites such as GIPHY state that the GIFS on their site should not be utilised for commercial purposes.
It would take exceptional circumstances for a copyright owner (say Universal Studios) to take umbrage with a business’ sharing of a GIF to the point of issuing a legal claim on the basis of copyright.
One might imagine this if, say, a competitor studio used GIFs of Universal Studios’ films in order to launch a campaign against them on social media – or if a vehement detractor used material in a way that was extremely detrimental to the studio. and the profitability of the film from which the GIFs were taken from.
Further to this, remedies in such cases would either constitute a reasonable royalty, or damages. In each case, the cost of bringing an action would massively outweigh the likely recompense. As such, in most instances of use, a copyright claim against the use of a GIF derived from or wholly comprised of the copyrighted material would not be a commercially viable one.
As such, the case law that is sorely needed in relation to the legitimate use of GIFs does not seem to be coming anytime soon.
A difficult test to pass?
However, if it did, the legality of the use of GIFs is, in and of itself, not a clear cut issue.
In the circumstances of a GIF test case (2) there are certain requirements for something to be considered to be infringing copyright – and broadly speaking GIFs might be considered “transformative” in that they do not adversely impact the original work. A GIF does not replace or damage the likelihood of someone watching the film it comes from, for example. Indeed the opposite might be true, as it presents a snippet which may be widely shared and draw interest to the content in question. There are also notions that use of GIFs might be fair use as they could be used for criticism, parody etc. in the way other copyright materials can be justly used without a license.
As such, in most cases of GIF use, it may be assumed that it is both, highly unlikely that a claim would be brought, nor succeed. However, when it comes to intellectual property law, it is always best to err on the side of caution.
Navigating the grey area.
Bearing the above in mind, the use of GIFs by commercial entities remains a bit of a grey area. In the current climate, liberal use of any GIF will likely not result in any adverse outcomes for a commercial entity, but there are some steps that might be taken to mitigate any risk – for those looking to be more cautious.
(It is also notable that these circumstances may change soon, as GIFs become more widely used, and copyright owners establish the extent to which they are able to exercise control over their assets in this form.)
Some good rules of thumb to follow are:
- Avoid the use of GIFs in a way in which it is likely the copyright owner would take umbrage. Generally, appropriate use is a matter of context rather than content. Placing yourself in the shoes of the copyright owner and thinking “would I disprove of this to the point of launching litigation?” is a good rule of thumb
- Where GIFs are “taken” from known copyright material – provide credit to the original owner (e.g. Credit: Universal Studios)
- If in doubt, avoid the use of GIFs originating from highly litigious sources and seek alternatives (or make your own!)