GIFs, or graphic interchange formats, are widely used. GIF, according to the format’s creators is pronounced “jif”, after the American brand of peanut butter – a contentious issue however, with many, including the White House weighing in on the debate and insisting that it should be pronounced with a hard “g” as in “graphic”. Regardless of your stance on the pronunciation thereof, you have probably encountered GIFs at some point. GIFs are particularly popular on social media platforms with Facebook and Twitter now having dedicated GIF buttons.
An animated GIF is a video file which comprises a number of frames which can be played in a sequence to form an animation. Due to the file’s small size, the resulting animation is usually quite grainy but is easily shared. The animation has no audio and can loop endlessly or stop after a few sequences.
GIFs often reproduce short extracts of films, sporting events or other copyright protected material. In some instances, GIFs include overlying captions which make them look somewhat different from the original work.
With the ever increasing popularity of GIFs and the ease with which one can now upload a GIF onto social media platforms and share them – is it legal to make and share GIFs of copyrighted material on the internet?
While this matter has not yet come before a court, some copyright holders have started enforcing their rights over video content that has been replicated using GIFs. While no legal action has yet been taken, Barclays Premier League has warned fans not to post unofficial videos of soccer goals online as this amounts to copyright infringement. They are even in the process of developing technologies to detect when GIFs of this kind have been shared in order to protect their copyright. The NFL (National Football League) in the USA has also sent several takedown requests to Twitter for certain tweets which included GIFs of clips of plays, highlights and blunders during a football game – all being copies of recorded events.
Is it Infringement?
In South Africa, copyright law is governed by the Copyright Act No. 98 of 1978 (“the Act”). While the Act has not yet been updated to deal with the use of copyright in an internet age, a copyright work of this kind would fall within the scope of a cinematographic film – a work which is protected by the Act.
When a GIF is created, a copy of the original work is made and in some instances, an adaptation of the original work is made. In the absence of any exceptions or consent from the author of the work, these acts infringe the copyright owner’s exclusive rights to the work accorded by the provisions of the Act.
Section 2 of the Copyright Regulations allows for reproduction of a work provided that certain provisions are adhered to:
‘The reproduction of a work in terms of s13 of the Act shall be permitted—
- a) Except where otherwise provided, if not more than one copy of a reasonable portion of the work is made, having regard to the totality and meaning of the work; and
- b) if the cumulative effect of the reproductions does not conflict with the normal exploitation of the work to the unreasonable prejudice of the legal interest and residuary rights of the author.’
The problem with this provision is that it is rather ambiguous. What exactly is meant by a “reasonable portion” of the work? It is conceivable that for a film, if enough of a significant or distinctive scene of that film is copied in a GIF, that it constitutes more than a reasonable portion of the work and therefore amounts to copyright infringement. Similarly for a sporting event, a GIF comprising a clip of a crucial goal could also constitute copyright infringement.
Are there any defences?
So what if the GIF does constitute more than a reasonable portion of the work or if you hit the share button one too many times and more than one copy is made? Are there any defences available?
The Act provides a limited number of exemptions from copyright infringement. In particular, it provides for fair dealing exemptions. These exemptions allow the public to make limited use of the copyright material without the consent of the copyright owner. Of particular relevance are the provisions of section 12(1)(b) and (c) of the Act in which copyright is not infringed if it is used for the purpose of criticism and review of that work or for the purpose of reporting current events.
In the case of a GIF which reproduces part of a protected work without modification (so that there would be no question that it is a parody), it is unlikely that the use of the GIF would be treated as a criticism or review or that it would be regarded as a report of current events.
For a GIF which may be considered an adaptation of the work i.e. when the GIF has an overlying caption or quotation, another defence may be applicable. Section 12(3) of the Act provides that copyright in certain works will be not infringed by a quotation taken from the work provided that “it compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose and that the source shall be mentioned, as well as the name of the author if it appears on the work”.
Whether these GIFs can be considered quotations as envisioned by the Act remains to be seen. However, from a practical perspective, it may be difficult to adhere to and it is therefore unlikely that the acknowledgement requirement is fulfilled.
While not every GIF created or shared will fall foul of the provisions of the Act and amount to copyright infringement, it is wise to consider the content thereof before clicking that share button. GIF sharers should also be mindful that even sharing a link for a GIF of a movie or sporting event is still considered copyright infringement.
Even if you have been guilty of sharing a GIF which constitutes copyright infringement, it doesn’t necessarily mean that you will be facing a copyright infringement lawsuit anytime soon – the practical implications in enforcing these rights, particularly in respect of viral GIFs, are vast. You should however proceed with caution.
Monty Rademeyer – Partner
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