When GIFs are created, a copy of the original work is made. This act of copying may infringe on the author’s exclusive right to reproduction ((1) in the link above) or their right to produce works derived from the original ((2) in the link above). Yes, the copyright act says that, lacking permission, only the holder of the copyright may produce adaptations of the original). Similarly, when those GIFs are put on the internet, the author’s distribution right and right to public display may be infringed ((3) and (5) in the link above).
The Copyright Act, however,
does allow certain unauthorized uses of copyrighted materials by creating a number of exceptions to those exclusive rights. The most relevant exception for GIF-making is called “Fair Use.” Making a GIF may not be an infringement or, alternatively, it may be an infringement for which the GIF-maker has a legal defense, shielding him/her from any liability. It could be
either of those things because judges and copyright scholars are unsure whether Fair Use is a defense that saves people from being liable after they have infringed
or whether Fair Use is a right that all people have against copyright holders. But that’s a complicated conceptual debate best left for bookish legal scholars.
Juries ultimately decide whether a particular use is fair based on four factors that are set out in the Copyright Act:
- the purpose and character of the use (commercial uses are less fair than educational, transformative uses, like parodies, are more fair than simple reproductive uses);
- the nature of the copyrighted work (factual works are easier to make fair use from then fictional works; the degree of creativity in the portion used matters);
- the amount and substantiality of the portion of the original work used (both quantity and quality);
- and the effect of the use upon the market (or potential market) for the original work (did your use make people less likely to buy the original? If so then it’s less fair).
No single factor is determinative and the use need not clearly “pass” all of the prongs to be fair.
The first prong about purpose and character mostly has to do with whether the use is “transformative.” Different courts describe that word in different ways but generally it means that the use has put the original in a new context that substantially changes the meaning or expression of the work. If I write a newspaper story about a famous painting I might be able include a picture of that painting without getting the rights because my use isn’t “art” it is “news.” I’ve transformed the work. A GIF might be viewed as transformative because it’s not a long film or TV show telling some story; it’s a very short moving-image on the internet that expresses a simple idea or joke. When a use is deemed transformative the remaining prongs of the fair use test are often said to be of lesser importance.
GIFs, in addition to being likely to be judged favorably as transformative under prong 1, also seem to pass prongs 3 and 4. They are usually tiny fractions of the original works and they probably do not make people less likely to purchase the full movies or TV shows from which they are derived. GIFs, however, are usually made from fictional, creative films or TV shows and would therefore be less fair under prong 3. Courts, however, often ignore prong 3 when the use is transformative, as we suspect most GIFs are.
Given this analysis it seems likely that GIFs are fair uses. The fair use test, however, is flexible and relies on the specific facts in each case (there could be as many varying judgements as there are varying GIFs on the internet!). Until a jury says your particular GIF is fair use you have no way of knowing for sure whether you will be liable. Unfortunately, just getting to a judge and jury (being sued etc.), regardless of the outcome, can be costly and time-consuming (to the tune of 50k+ and months/years of anguish). That said, the fact that no one has yet brought a case against a GIF-maker may indicate that copyright holders, like movie studios, think that suing GIF-makers would be a losing fight, especially given that costs from public relations problems and legal fees might be much larger than any potential benefits from winning a difficult lawsuit.
Given all this uncertainty, businesses or highly visible people with a lot to lose might be very reluctant to create and post GIFs, as you can see in this article:
Why Brands Should Be Wary of Animated GIFs
