You may have heard that Deadspin’s GIFs disappeared from Twitter. And then Deadspin disappeared from Twitter. And then Deadspin reappeared on Twitter. It all seems completely ridiculous, except all of it was a pretty standard blunt-force application of copyright law on the internet. The only unusual part was that Deadspin was able to fight back.
There’s nothing in the law that says publishing a GIF without authorization is an automatic infringement on someone’s copyright, nor is there anything that says it’s automatically OK. The law is more flexible than that.
Copyright gives the owner a bundle of rights to a work that’s been “fixed in a tangible medium of expression.” For GIFs, that work is generally going to be something filmed or animated. The owner’s rights include the exclusive ability to make copies of the work, create derivative works based on it, broadcast the work, and license or sell the work.
But the U.S. Constitution enshrines both copyright and free speech, and giving people exclusive rights to expression can run headlong into other people’s First Amendment rights. It’s hard to talk about something if all the contents of that something are under someone else’s complete control.
This is where fair use comes into play. Fair use is a safety valve on copyright law, a way to vent the public’s interests out of the confinement of copyright law’s property interests. Fair use allows you to use copyrighted material without permission or payment, for certain socially valuable purposes. Fair use is why we can have examples in book reviews and why quoting from a book in your high school essay isn’t infringement.
According to federal copyright law, fair use for purposes like “criticism, comment, news reporting, teaching, scholarship, or research” is “not infringement.” While the law doesn’t exhaustively list every purpose covered by fair use, it is a much easier row to hoe if you fall clearly into one of those categories. A lot of GIFs do—they are used to critique TV shows or movies, or to illustrate a news event that’s being reported on.
That same section of the law outlines four factors that must be used to determine fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Courts have to consider all of these factors to determine fair use, but how much relative weight they are given varies. For a while, the last factor—the effect on market value—was treated as the most important. This dealt not with the prospect of, say, a negative review harming a movie’s box office, but with the risk that an excerpt might include so much material that people would have no need to see the original at all.
Recently, however, a lot of attention has been paid to the first factor, with an emphasis whether or not the purpose or character of the use is “transformative.” In other words, how much value has the user added? This fits neatly with the purposes listed at the start of the section—criticism or commentary of a work, by its very nature, adds something new. And using a clip or a GIF to capture something newsworthy is different from showing the whole event.
And GIFs can be—mostly are—completely divorced from their original context. Darth Vader’s own reasons for yelling “NOOOOOO” have nothing to do with why you’re posting a GIF of that moment in the comments. Which is pretty transformative.
The third factor, the length of the excerpt, is rarely relevant when it comes to GIFs, since they are so short. And length isn’t always a straightforward matter. A song parody is fair use even though it can use most of a composition. And publishing a few pages from a book without permission is not fair use if they’re the only pages worth anything in the whole book. By the same token, publishing a GIF of the crucial moment in a broadcast, the only reason someone would watch it, can make a fair use argument more difficult.
So it’s not just that it’s a GIF, it’s going to be who made it and why.
If you frequent Twitter, you’ve probably seen that cute little “media is no longer available” grey box. That’s Twitter stripping out GIFs from accounts, which is what happened with the allegedly infringing Deadspin tweets. You’ll also see accounts suspended if that happens too much. The reason for that is the Digital Millennium Copyright Act (DMCA).
The DMCA has a bunch of provisions, but the one that gets you banned from Twitter and YouTube is Section 512. Very briefly, Section 512 protects all the Twitters, YouTubes, Tumblrs, and so on out there from being sued for copyright infringement by their users.
In order to take advantage of the safe harbor provided by the DMCA, sites must have systems in place to receive infringement complaints, to remove content accused of infringement, and to deal with repeat offenders (i.e., to ban them). Once a complaint is received, a user is sent one of those “takedown notices” that keep making the news.
After getting a notice, the company has to respond “expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.” To limit liability, “expeditiously” is often interpreted as close to “immediately.”
In theory, the DMCA is supposed to balance the rights of the copyright holders (giant companies), service providers (companies of all sizes), and users (mostly not companies). Take one guess at who, in practice, gets the shaft here.
Corporations have the resources to employ people to trawl the internet and send complaints for whatever they find. Those resources also mean that the service providers are far more frightened of an angry entertainment giant than of an upset user. The way the DMCA is written makes filing complaints much easier than filing counterclaims, which is the only way to stop your work from being taken down. And doing that requires surrendering all contact information, agreeing to the jurisdiction of a federal court in the event of a lawsuit, and taking an oath under penalty of perjury that you weren’t infringing. It’s a really intimidating step.
A lot of the time, groups decide to just pay owners, simply because it’s easier and cheaper than a lawsuit. Even if fair use gives them the legal right to use things. Which is a decent result for the companies, obviously—scaring smaller producers away from using their content and getting money from larger ones.
The DMCA is spectacularly easy to abuse. Unlike trademark, you don’t have to go after every infringer to keep your rights. You can choose to go after some people and not others. Which means that negative commentary is targeted more often than positive commentary. It’s an underhanded use of the law that we’ve seen time and time again.
The way that the DMCA has been used to prevent legal fair use has been a constant problem. But just last month, a new wrinkle got added to the case law, one that’s actually on the side of the users.
In Lenz v. Universal Music Corp, a mother uploaded a 29-second video of her kids dancing to “Let’s Go Crazy” by Prince. Universal had tasked an assistant in its legal department to monitor YouTube for any video where something they owned was being used as the focus of a video. And then Universal sent YouTube a complaint, resulting in a take down.
Unlike almost everyone else who gets a takedown, Lenz filed a counterclaim. Universal maintained that the video was copyright infringement because neither Lenz not YouTube had paid them for the rights to the song. Lenz ended up suing Universal for abusing the DMCA, arguing that the complaint it had sent YouTube violated the law, as the company didn’t consider fair use before sending it.
The Ninth Circuit Court of Appeals held that fair use isn’t merely an excuse for infringing conduct. It isn’t infringement at all. Said the court:
[W]e hold—for the purposes of the DMCA—fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is “authorized by the law” and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c).
Under that section 512(c), a company sending a complaint must have a good-faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. In Lenz, Universal tried to argue that fair use isn’t authorized by the law, it is merely a defense.
Based on the fact that the law says that fair use “is not an infringement of copyright” and that the Supreme Court has held that “anyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use,” the Ninth Circuit rejected their argument.
This means that, from now on, companies sending DMCA complaints have to take fair use into account. Which is good! Using the DMCA to silence critics is one of the most insidious uses of that law. The other is to make it nearly impossible to use footage without contacting the rights holder. Not only does that force people to pay when they legally don’t have to, it also means that the rights holder can force people to only use their footage in ways they approve of.
However, Lenz isn’t the full-force victory people would really like it to be. The Ninth Circuit also held that Universal only faced liability if “it knowingly misrepresented in the takedown notification that it had formed a good faith belief the video was not authorized by the law, i.e., did not constitute fair use.” In other words, it has to be proven that the company knew that it was going after fair use. Or that the company pursued a policy of willful blindness: it must subjectively believe that there is a high probability that a fact exists and take deliberate actions to avoid learning of that fact.
The court added that copyright holder’s consideration of fair use “need not be searching or intensive” and that a computer algorithm could be sufficient to do so. Which is even less helpful than tasking some poor assistant to do it, since all an algorithm has to do is search for copyrighted material without looking at the context of its use.
While the definition of fair use the court used is a good thing, we’ll see how much it actually changes the way companies act. If companies take the ruling seriously, complaints against fair use works should decrease in number.
So here’s the way everything stands: Fair use should extend to many, if not most, GIFs. Companies now have to take fair use into account before sending a complaint to service providers. In theory, that means that fewer GIFs should end up being removed. In practice, companies have a lot more experience manipulating the DMCA than most people do fighting them.
GIF by Jim Cooke, source via NFL/Youtube
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Legal disclaimer: None of this is legal advice. None of the opinions presented in this article represent the opinions of Gawker Media as a whole.