Does Twitter's #GIFparty Infringe on Copyright Laws?

Attention — Twitter has an important message for you:

Twitter implemented today its GIF partnership that was announced earlier this month. An arrangement with Giphy and Riffsy allows Twitter users to browse, search, and send GIFs at the press of a button right there in the tweet window of its mobile and web app. No longer will we be required to leave the app, find the GIF, and then post the link.

Which is great, because how else would you be able to perfectly express your excitement without Trevor Noah expressing it with an infinite loop?

But while you’re out there recklessly tweeting out GIFs like they’re going out of style, you might stop to ponder the legality of a GIF. The above GIF, for example, is taken from The Daily Show With Trevor Noah, which is on Comedy Central, which is owned by Viacom. Viacom is a company who is more than willing to take their intellectual property claims to court. Case in point: the $1 billion lawsuit Viacom filed against YouTube in 2007 — part of which was over YouTube allowing their users to post clips of The Daily Show, then starring Jon Stewart.

That case wasn’t settled until 2015. Yet does Viacom have it in them (or have the rights) to go after people posting Viacom’s content in GIF form? After all, both Deadspin and SB Nation had their Twitter accounts first censored, then removed from Twitter, for copyright claims from the NFL. What’s to stop Viacom from doing something similar?

GIF copyright and the Constitution

Americans have the right to both copyright their original work and speak freely about other people’s work. Sometimes those two get a little tangled though, and that’s where the term “fair use” comes in to clear everything up.

Fair use allows people to use copyrighted material without having to ask permission or pay the owner. Without fair use, every blogger or journalist reviewing Game of Thrones would need to get consent and/or have to pay a fee to George R. R. Martin and Co. before including a quote or clip from the series. Under federal copyright law, fair use covers anything under “criticism, comment, news reporting, teaching, scholarship, or research.”

More specifically, fair use depends on four factors:

• The purpose and character of use

• The nature of the copyrighted work

• The amount and substantiality of the portion taken

• The effect of the use upon the potential market for value of the work

The purpose and character of use

The courts are more likely to rule in favor of the person using the copyrighted material if the use is “transformative.” This means making it into something new entirely, giving it new meaning, or adding the material into commentary.

The courts also tend to favor the person using the material if the use is for nonprofit or educational purposes — i.e., the “criticism, comment, news reporting, teaching, scholarship, or research” qualification.

It’s the rare GIF that is used in the same context the original video was made for. The above GIF, for instance, isn’t being used here to explain how to make an old woman look like an old man, it’s to represent change. Now that’s “transformative.”

The nature of the copyrighted work

By “nature,” the law means what the material being used was originally created for. Generally speaking, private and unpublished material doesn’t fall under fair use, as does material made expressively for educational purposes or creative works. That essentially leaves nonfiction work.

This can get a GIF in a little bit of hot water, since few GIFs are made under the “nonfiction” category. But infringing on factor number two won’t completely burn a person, since the court weighs all four factors.

The amount or substantiality of the portion used

First off, the law doesn’t specify an exact percentage of material that can be used. The more you use, however, the less likely you are safe under fair use.

The percentage of the work used relative to the length of the original matters. Obviously, using an entire Harry Potter movie to illustrate how magic is portrayed in popular culture would not be considered fair use. A five-second GIF of Harry flying on a giant bird on the other hand, has a better shot.

Here’s where some interpretation comes in though. If that relatively small portion of the work is the “heart of the work,” then it probably won’t fall under fair use. For example, if a GIF uses the very best moment of a TV show or movie making it useless to watch the entire work, the courts will generally rule with the copyright holder. It’s extremely unlikely that one GIF will encompass every bit of watchable material though, so this one doesn’t affect Twitter and the GIF market too much either.

The effect of the use on the potential market for or value of the work

Original work that can be purchased or licensed is generally protected by copyright law. Viacom’s suit against YouTube is the perfect example. Luckily — as Spongebob is also owned by Viacom — GIFs work a bit differently than whole clips or excerpts. Claiming that a short GIF lowered the value of a purchasable work is very unlikely to succeed.

So go ahead and GIF on, don’t let the hype die, and never let the GIF party end. Those GIFs probably fall under fair use.

This is just the latest feature Twitter has added to its service since founder and new CEO Jack Dorsey took back over the company in 2015. It’s added a Moments feature that clusters trending news topics, an algorithm that groups tweets together you might find interesting — which people said would ruin it — and still to come, Twitter’s reported move from its classic 140 character limit to kind-of-crazy 10,000 characters.

Correction: An earlier version of this story stated Twitter announced its GIF feature today. It was implemented today and announced on February 17.