Articles News / 10.14.2015

Fair Use: Get the GIFst

Authored by: Jennifer M. Hart

On Monday, October 12, 2015, Twitter suspended @Deadspin and @SBNationGIF. Was it because Deadspin is among the sports blogosphere’s more irreverent? No, it appears that the National Football League (the “NFL”), the Ultimate Fighting Championship (“UFC”), the Southeastern Conference (the “SEC”), and the Big 12 Conference (the “Big 12”), issued more than a dozen Digital and Millennium Copyright Act (“DCMA”) takedown notices to Twitter, alleging that Deadspin and SBNation infringed their copyrights. How do you ask? By posting GIFs and Vines of highlight-reel moments from sports broadcasts that are owned by the UFC, NFL, and the two college football conferences.

GIF stands for “Graphics Interchange Format” and is a type of image that is widely used on the internet for images and has had a surge in popularity in recent years due to its ability to play a “loop.” GIFs are short and generally cover between one and 10 seconds of video frames without sound. Vines are six second video loops that can include sound. Both are commonly used on social media websites like Twitter, Tumblr, and Facebook. Indeed, some websites, like Buzzfeed post entire articles that mainly consist of a series of GIFs linked by a minimal amount of text, and http://giphy.com/ is a search engine focused entirely on finding the right GIF for the moment.

Excitment Gif

Deadspin’s account has since been reinstated, though all allegedly infringing material has been removed from the account’s tweets. As of this posting, SBNationGIF’s account remains suspended. NBC News posted a copy of the DCMA notice that UFC sent to Twitter here. According to NBC, the NFL’s takedown notices did not include a demand that the Twitter account be suspended. FN1

oops

But by creating and posting these GIFs (or Vines), are the original owners’ copyrights being infringed? Though GIFs aren’t new (CompuServe created the file format in 1987), the issue of whether these looping video GIFs made from copyrighted material are infringing hasn’t been determined by any US court. And even if they are otherwise infringing, the question remains whether these GIFs fall within the “Fair Use” doctrine, a safe harbor where “the fair use of a copyrighted work, . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107.

baseball

It seems clear that Deadspin and SBNationGIF use GIFs and Vines for the purposes of comment and news reporting, but to determine whether the use of a copyrighted work is a “fair use,” courts must weigh the following four factors:

  • 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.

17 U.S.C. § 107. Here, the copyrighted work is clearly used in a commercial nature: Deadspin and SBNationGIF create GIFs to generate content and drive visitors to their websites and social media accounts. However, as explained above, GIFs typically do not contain more than 10 seconds of video frames (and Vines are limited to six seconds), which is a fraction of a three-hour long football broadcast.

Courts typically find that using such a small fraction of a work favors a finding of fair use, but the relative importance of the segment to the whole work is also considered. See Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996) (finding fair use when a Muhammad Ali biopic used 41 seconds from a boxing match film); SOFA Entertainment, Inc. v. Dodger Productions, Inc., No. 2:08-cv-02616 (9th Cir. Mar. 11, 2013) (finding fair use when the musical Jersey Boys used a seven-second clip from the Ed Sullivan show); c.f. Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1100 (2d Cir. 1982) (finding that the one minute and 15 second clip from a 72-minute film was not fair use because the clip was substantial and part of the “heart” of the film); Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997) (finding that a TV station’s use of 30 seconds from a four-minute video was not fair use because it took the heart of the work). This season there are approximately 130 or more snaps per NFL game. Are one or two plays from each game really the “heart” of a game? On the other hand, according to a December 10, 2013, article from sportsonearth.com, only nine plays per game will be for 20 yards or more, there will be only 3.1 passing touchdowns and 1.6 rushing touchdowns, and a defensive touchdown will only occur every other game, meaning of those 130 snaps, only 10 to 15 will be highlights. See http://www.sportsonearth.com/article/64441086/nfl-statistical-analysis-average-nfl-game.

Finally, and likely the most important factor in this instance, is whether or not the posting of highlight-reel GIFs will reduce the market or value of the NFL, UFC, SEC or Big12’s live broadcasts or online video highlights is an open question. If so, then this factor would weigh heavily in favor of the copyright holder and no finding of fair use.

As with any factor-based test, whether or not these files are infringing remains an open question. What is clear, though, is that the NFL, UFC, SEC and Big 12 may have just changed the playing field for GIF makers, and the rightsholders actions yesterday may have a chilling effect on the posting of GIFs on social media.

steve


Then again, maybe not.

FN1: The question of whether UFC’s DCMA takedown notice complies with the Ninth Circuit’s recent ruling in Lenz v. Universal Music Corp., et al is the subject of a different article and may be grounds for Deadspin to file a lawsuit against UFC. See Lenz v. Universal, 2015 U.S. App. LEXIS 16308 (“Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law.”).