One of the most commonly asked questions among bloggers and entrepreneurs is whether GIFs are subject to copyright or whether there are any legal restrictions to their use?
The short answer is that yes, GIFs are definitely subject to copyright law rules as original creative works. The long answer is that even though GIFs are subject to copyright, they are still in that gray area because as of now there haven’t been any cases that were brought for GIF copyright infringement. There are no guidelines as to the penalties, or even how the courts will go about enforcing copyright on GIFs.
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Usage of animated gifs can be legal if it’s ‘fair use’
The rules of copyright don’t change just because it’s animated GIFs we’re talking about. So if you use someone else’s copyrighted work without permission, then you’re infringing their copyright, unless you can show that your use is considered fair use.
Fair use is a complex part of copyright law because it’s not clear cut, and it’s always determined by a case-by-case basis. If something is determined to be fair use, then there is no copyright infringement.
Fair use is a legal doctrine and it’s part of the Copyright Act. There are four factors that are considered when determining whether a certain use may be considered ‘fair use’. Those four factors are:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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; and
- The effect of the use upon the potential market for or value of the copyrighted work.
To learn more about fair use and how it’s decided, make sure to read this post here to learn more about copyright and fair use.
If a GIF usage is determined to be fair use, then that work will be transformative, and will not affect the original work. This means you can use that GIF freely without worrying about copyright infringement.
Context of shared gifs is a key aspect for fair use
Nowadays social media is dominant and most, if not all, bloggers, share content on different social platforms, emails, blog posts, videos, etc. Sharing GIFs has become an accepted practice. In fact, many bloggers and entrepreneurs use GIFs to insert some personality into their content.
Most of the time the GIFs get shared because of the context. For example, someone might say to describe how your day is going with only GIFs. You could insert a GIF of something that represents how you feel-happy, sad, stressed, bored, etc.
In this case, the GIF itself doesn’t matter as much as what it represents and the context it’s shared under.
If the context is meant to undermine or devalue the original work that is the subject of the GIF itself, then it would be incredibly difficult to make a case for fair use. In this case, the context of the GIF would not be transformative because people’s perception of the original work would be affected.
In that case, a lawsuit is far more likely to happen, than in regular transformative use that is considered fair use.
Animated gifs of celebrity faces
If you’re a business, there is only one safe way to use GIFs that have famous faces in there and that’s to get permission. To be safe, businesses should avoid using any GIFs that have famous faces in them.
The reason for this is because celebrities have a “right of publicity” which allows public figures to control how their images may be used. If you, as a business, use a GIF that contains a famous face, and that person decides to invoke their right of publicity right, then you will receive cease and desist letter and possibly an invoice.
If you want to use famous faces in GIFs safely, then you should get the public figure’s permission, the copyright holder of the original work, and optionally, the GIF creator’s permission. Since this is a tall order and getting permission from this many people or entities is not simple or easy, it is best to avoid using famous faces in the GIFs.
Aside from getting permission, certain organizations have strict policies against using faces or clips of their content. For example, sports organizations like FIFA and the International Olympic Committee are strictly against GIFs and have a zero-tolerance policy. Therefore, even before you use any GIF, make sure to check the terms of use for the organization in question to not be in violation and get fined.
Steps to take for the ultra-cautious
As I mentioned above, as of this moment, there have not been any court cases for GIF copyright violations. Therefore, hard data and policy about violations and fines as of now don’t exist.
However, just because there are no cases at the moment, doesn’t mean things will stay as-is in the future. Some people and businesses prefer to be extra cautious to protect themselves from liability in the future.
Before using any kind of GIFs, especially as a business, put yourself in the shoes of the other party. Would you find an issue with the way the GIF was used? Does it portray the original work in a way that makes the audience disregard the original work?
For GIFs, remember that context is more important than content. If what you shared does not take away from the original work of the product that makes the GIF, and preferably does not include a famous face or sports clip, then your use is more like to be found fair use if you ever get in trouble for that.
As mentioned several times throughout this post, avoid using GIFs of famous faces and sports clips if you’re a business (read business as earning money from the source you use the GIF in).
When use GIFs, and want to make sure you’re protected from any copyright issue in the future, you can get permission from the original copyright holder and the person or entity that appears in the GIF.
If you use a GIF, make sure to give appropriate credit to the original creator of the GIF when possible.
The safest of the options is to create your own animated GIF with images and photos you hold the copyright to or those that are in the public domain.
Conclusion
Animated GIFs, like any other original creative work, are subject to copyright laws. However, as of now, there have not been lawsuits to enforce GIFs for copyright purposes. However, just because something does not exist now, doesn’t mean it won’t exist in the near future.
To be safe from any copyright lawsuits for using GIFs improperly, pay attention to the context you use the GIF in. Stay away from using GIFs consisting of famous faces because the famous person in question can invoke their “right of publicity.”
Also, keep in mind, that many sports organizations have laws and rules against using GIFs of sports clips. The safest options are to get permission or make your own GIFs. You can use GIFs for personal use-however, you must follow the guidelines set above if you’re a business.
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