If you’re based in the US, you can usually do as you please with GIFs, unless you intend to make a profit. In the EU – things get complicated, because depending on your country, you could possibly be sued.
Graphics Interchange Format files – GIFs – pronounced ‘jif‘ (I can already see half the readers up in arms), allow for the display of short video clips or animations in small file sizes due to a typically heavy downgrade in video quality and other compression techniques. GIFs can also be used for images with simple shapes and block colours, of course, but we will only be dealing with the former aspect of such files for the purposes of this post.
Originally, GIFs were used for their ability to store simple images in extremely small sizes, which worked well for websites that wanted to increase the speed with which they were loaded onto a browser, and decrease bandwidth usage of the hosting server. However, with server and bandwidth capacities increasing by leaps and bounds, as well as with the greater ease of creating GIFs out of video segments, their use transitioned from efficiency to the creation of rich, multimedia websites with dynamic content.
With increasing technological growth allowing for better content on websites, especially with social media forums such as Tumblr allowing the use of GIFs to react to posts, the popularity of GIFs exploded. Many websites fed such demand because hosting GIF files was much less intensive compared to hosting videos (which did not repeat ad infinitum, were longer, took up much more storage space and also required special plugins to display).
To check the legality of GIFs, it is important to look into the manner in which such GIFs are used. As pointed above, GIFs are typically used in two scenarios in current times:
- To create more impactful content, for example, by websites such as Buzzfeed; and
- By users to provide more colourful or humorous reactions on social media websites such as Tumblr, Facebook, etc.
This is important to note due to the specific exceptions to an author’s right to give or prohibit the use of their work, per copyright law in the EU, which is discussed further below.
Copyright Law in the European Union is informed by the following sets of documents:
- the Berne Convention for the Protection of Literary and Artistic Works, 1886 (known as the Berne Convention);
- Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (known as the InfoSoc Directive) – which incorporates principles from the Berne Convention;
- Copyright laws in each Member State of the European Union, which must in turn incorporate the InfoSoc Directive to some extent to ensure harmonization amongst the Member States.
For the purposes of this post which looks into exceptions to an author’s rights, specific Member State law is limited to that of The Netherlands. Having said that, it is important to examine provisions of the Berne Convention, the InfoSoc Directive and the Dutch Copyright Act, 1912 together, since principles do overlap.
To provide a brief summary: the InfoSoc Directive gives authors, performers and producers the “exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part”. Having said that, the Directive also provides certain exceptions to such a right.
The Berne Convention has generally depended on a three-step test to determine the validity of an exception to an author’s right to allow or prohibit reproduction of their work under Article 9(2):
- Exceptions should be confined to certain special cases;
- Exceptions should not conflict with the normal exploitation of a work; and
- Exceptions should not unreasonably prejudice the legitimate interests of an author.
Any exception to an author’s rights must follow all three steps. This is important to note because it lays the philosophical foundation to exceptions to copyright – which, considering the novel nature of GIFs, will play a role in forming a conclusion regarding their legality.
We now turn to the specific exception under Article 5(3)(d) of the InfoSoc Directive that deals with quotations. This clause allows Member States to make provisions for: “quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose” (emphasis added).
Note here that the ingredients for the use of quotations are three-fold:
- there are limited purposes;
- the subject-matter must already have been lawfully made available to the public; and
- the source must be indicated.
However, the basic premise of this exception is that Member States have some leeway in the manner in which such an exception is legislated within their territory.
The exception provided for quotations under copyright law in The Netherlands can be observed through a reading of Article 15(a) of the Dutch Copyright Act, 1912 (Auteurswet), when translated to English. The ingredients identified in the section above, when mapped to this specific section, gives the following result:
- limited purpose – announcement, criticism, polemic or scientific treatise;
- work lawfully made publicly available – this condition exists here as well;
- indication of source – provided for here as well;
- quotation is in conformity with social custom, and number and length of quoted passages are justified by the purpose to be achieved; and
- an author’s right to reject such use must be respected.
As can be seen, the last two ingredients have been made by the Dutch legislators in addition to those already provided for by the InfoSoc Directive. Further, the purposes for which quotations can be used has also been expanded.
Can GIFs be considered quotes? Mapping the specific ingredients with the manner in which GIFs work yields the results below.
Ingredient 1: Purpose. Technically, they are video clips used for the purpose of humour or reaction. In fact, the specific clips are used simply because they provide a more nuanced form of expression on the internet than can be made through the use of simple text. This is important because in such cases, the original work itself is not criticized or commented on in any way. This obviates the very first ingredient of the quotation exception for The Netherlands: that of a purpose limited in a way that references the original work. Having said that, there are some Member States such as the United Kingdom which provide for open-ended purposes that allow quotations that do not necessarily refer to the original work.
Ingredient 2: Lawfully available original work. This ingredient is typically adhered to; GIFs are used precisely because visitors to a website are aware of the source of the GIFs.
Ingredient 3: Indication of Source. A distinction can be made in the usage of GIFs themselves: on one hand exist GIF aggregators and search engines such as Giphy which commercially exploit GIFs by making them available for general use while generating revenue through online advertisements. On the other hand are social media websites and list-based websites such as Buzzfeed where the GIFs are actually used to make a statement or reaction. For GIF aggregators such as Giphy, it is easier to cite sources of their GIFs through the categorizations within which they store those files themselves. Specific categories that make GIFs available are named in a manner that refer to their source material by name. However, the latter typically never cite sources for their GIFs at all; in fact, they usually depend on their viewers to guess the source of the GIFs based on context. This violates another tenet of quotations as an exception under copyright law.
Dutch Ingredients 4 & 5. These are vague ingredients; that said, since current social custom does allow for the use of GIFs (seeing how popular their use is on the internet), one could state that the fourth ingredient is being met. Regarding the right of an author to object to the reproduction of their work – rights holders in TV shows and movies do still have this right, but they typically do not use them because it makes market sense to allow the use of GIFs – such GIFs popularize the original work itself, bringing a wider audience and thus generating more revenue for the rights holders.
Due to the lack of a legislative framework similar to that of ‘fair use’ under US copyright law, the applicability of copyright law on GIFs is quite convoluted and makes such use potentially infringing, as discussed above. GIFs are used online as a harmlessly giving depth to one’s expression, drawing their need from the limitations inherent in the nature of the internet. I believe that they should certainly be treated as non-infringing for this very reason; their use is typically not commercial in nature (exceptions such as GIF aggregators exist, of course). Indeed, their use broadens the nature of debates and conversations on the internet in a manner that plaintext never can; if as they say, a picture is worth a thousand words, even small GIFs are probably worth much more.
The dubious nature of their legality is compounded by the fact that no case law exists to provide clarity on the issue. Analogues such as the case of England and Wales Cricket Board and Sky UK Limited vs Tixdaq Limited and Fanatix Limited which made the use of 8-second video clips illegal, cannot be properly cited for the use of GIFs for the simple reason that the reason for using video clips vis-à-vis using GIFs is wildly different.
The use of GIFs would also adhere to the basic principles of exceptions outlined by the Berne Convention; their use could be a special exception, considering that there is nothing quite akin to GIFs; it would also not interfere with the normal exploitation of the original work, or unreasonably prejudice the interests of the author, for the reasons discussed in the two paragraphs above. This is certainly an issue that could be litigated soon; hopefully, some clarity will be brought in the coming years.
 About.com, GIF Files, accessible at: http://graphicdesign.about.com/od/Definitions/g/Gif-Files.htm; last accessed: 21/04/2016
 Ibid at 1
 Sitepoint, GIF, JPG and PNG – What’s the Difference?, accessible at: http://www.sitepoint.com/gif-jpg-png-whats-difference/; last accessed: 21/04/2016
 Tumblr, Tumblr Staff Update January 10th 2012, accessible at: https://staff.tumblr.com/post/15623140287/1mb-gifs; last accessed: 21/04/2016
 GigaOm, When is an animated GIF better than a video?, accessible at: https://gigaom.com/2011/03/06/when-is-an-animated-gif-better-than-a-video/; last accessed: 21/04/2016
 Deathandtaxes, BuzzFeed will steal your video and chop it into tiny little GIFs, accessible at: http://www.deathandtaxesmag.com/253447/buzzfeed-steal-lifehacker-video-bad-breath/; last accessed: 21/04/2016
 Ibid at 5
 Wired, You Can Finally, Actually, Really, Truly Post GIFs on Facebook, accessible at: http://www.wired.com/2015/05/real-gif-posting-on-facebook/; last accessed: 21/04/2016
 Article 2, InfoSoc Directive
 Article 5, InfoSoc Directive
 WIPO, Knights, R (2001), Limitations And Exceptions Under The “Three-Step-Test” And In National Legislation–Differences Between The Analog And Digital Environments, accessible at: http://www.wipo.int/edocs/mdocs/copyright/en/wipo_cr_mow_01/wipo_cr_mow_01_2.pdf; last accessed: 21/04/2016
 WikiSource, Article 15(a) of the Dutch Copyright Act (Auteurswet), accessible at: https://en.wikisource.org/wiki/Copyright_Act_(Netherlands)#Article_15a; last accessed: 21/04/2016
 Copyright, Designs and Patents Act 1988, Section 30(1ZA)
 TechCrunch, Giphy Closes $55 Million Series C At A $300 Million Post-Money Valuation; accessible at: http://techcrunch.com/2016/02/16/giphy-closes-55-million-series-c-at-a-300-million-post-money-valuation/; last accessed: 21/04/2016
 Ibid at 5 and 9
 Ibid at 7
 IPKat, Can GIFs infringe copyright? In Europe the answer is potentially ‘yes’, accessible at: http://ipkitten.blogspot.nl/2016/02/can-gifs-infringe-copyright-in-europe.html; last accessed: 21/04/2016
  EWHC 575 (Ch)