'GIF'-ing Copyright Infringers a Break?

A GIF (Graphics Interchange Format) is a moving image posted to a web page. A GIF can be very short clip of a film or a mixture of a number of films that play over and over again. GIF's are usually produced for non-commercial purposes for entertainment or for news reporting and are increasing in popularity.

When a GIF is produced it uses a copy of an original work. The author of the original work has the exclusive right to reproduce that work and the creation of a GIF could infringe copyright.

GIF's and the National Football League

The National Football League ("NFL") has allegedly sent take down requests to Twitter requesting that they disable links and GIF's that infringe the NFL's copyright. If the case was to progress, the GIF users would potentially have a defence in the US of "fair use". Fair use is when copyrighted material is copied for transformative purposes, comment, criticism or a parody. For example, quoting a few lines of a copyrighted work when producing a review, reporting on a copyrighted work, using the material in teaching or ridiculing the work in a parody.

UK and EU

The situation in the UK and EU is less clear. The High Court and the EU has previously held that embedding a video on a web page is not an infringement but a case has not yet been reported involving the use of a GIF. The InfoSoc Directive provides that EU Member States are free to implement laws into their own legal systems.

Previous EU case law in Infopaq (Infopaq International A/S v Danske Dagblades Forening) suggests that the use of a GIF could infringe the original author's copyright.  In Infopaq the ECJ held that the storing and printing out of 11-word extracts from newspaper articles amounted to reproduction within Article 2 of the Copyright Directive (2001/29/EC) if the elements reproduced were the expression of the author's intellectual creation.  A work would be infringed if the copy "contains an element of the work which, as such, expresses the author's own intellectual creation."

In the UK s.30 of the Copyright Designs and Patent Act 1988 provides that copyright is not infringed by the use of fair dealing with a work for the purposes of criticism, review, quotation and news reporting.

It is obvious where the defence of criticism, review and news reporting could be used. Some GIF's contain a very short quotation from a film and in this instance the defence that the GIF is a quotation could apply. For this defence to apply the quotation must be fair dealing, the extent of the quotation must be no more than is required for the purpose and the quotation should be accompanied by acknowledgement of the author, unless this is not reasonably practice.

As yet a copyright owner has not tried to enforce their rights against the use of a GIF in the EU. Whether or not a GIF is found to be infringing could depend on whether enough of the infringing work is replicated and where the infringement takes place.   We will keep you up-to-date of any new developments in this area.