GIF-Gate: The NFL Hates Your Memes, Photos and VideosPosted 13 Oct 2015 by Law Office of John M. Phillips
What the GIF?!?
GIF is “Graphics Interchange Format.” Some pronunciation aficionados would remind you that, that is graphics, not Jraphics. 70% of the world pronounces it “ghif.” The Oxford English Dictionary says both pronunciations are acceptable. But that really isn’t the controversy here.
Also, I could discuss the “Left Shark” controversy and how an out of rhythm guy in a costume lead to a battle between my client who made animated 3D figures of said shark and Katy Perry, who claimed she owned everything “Left Shark” (even though the costume was designed by someone else, the internet named Left Shark and the NFL owned its presentation). But that really isn’t the controversy here, either, and, well, “no comment.”
The issue here is how the NFL put pressure on Twitter over, well, animated graphics. Twitter then took down the accounts of the sports accounts, SB Nation (run by Vox Media) and Deadspin (owned by Gawker Media). The NFL isn’t alone. The UFC, and the Big 12 and Southeastern collegiate sports conferences have also recently sent claims of copyrighted violation. It’s not new. During the recent World Cup, FIFA went on the attack going after anyone “displaying and/or offering 2014 FIFA World Cup Brazil audio-visual content.” In fact, FIFA even went after a small Texas brewery.
Much of the content was not full audio and video pulled directly from the broadcast but in soundless GIF form, but this might not be a valid distinction. A good GIF takes some measure of creative and technical skill to make. That’s also important.
No Precedent… Yet
We cannot find a single US case that definitively states whether creating a GIF made from otherwise copyrighted material is or isn’t copyright infringement.
NFL has Rights and is Exercising Them
We get that the NFL, etc., owns the imagery and aren’t exactly disputing their rights to control it. In fact, the NFL recently reached a deal with Twitter, so certainly wants to keep control over its imagery and keep revenue to its own account instead of allowing other GIF based accounts to take over.
There are two primary defenses- abandonment and fair use.
Because the use of a GIF was never really contested by the leagues, and not directly monetized by the publishers, does that make it an acceptable practice? No. While years of no enforcement have led to widespread usage, that does not mean that the continuing rights have been abandoned.
And then there is “Fair Use.” In a nutshell, the defense is that GIFs are transformative works — they are fundamentally different from the TV footage, they exist to comment on that footage, and they don’t hurt the market for that broadcast. They aren’t sold or purchased. They aren’t competing. I get it and don’t disagree.
The opposite side is that a successful GIF post can draw thousands of views, netting someone either advertising revenue or traffic which inversely causes revenue. Some of this is indirect, but it is still using the works of another to influence commerce. It’s also “from” the broadcast, even if it isn’t “the” broadcast. They are also going after commercial accounts more than just the fan club or fan. It’s big business as the NFL gets more and more into the world of social media.
At the end of the day, what constitutes fair use is determined by federal judges or juries on a case-by-case basis. In the meantime, I don’t expect the NFL and its buddies to stop fighting the fight. Meanwhile, they will pick on people who don’t have the assets to fight and will bully their way around Twitter and Facebook.
The larger issue is the fact that the NFL is missing the point- interest and entertainment. It is thumbing its nose at the fans who watch the games anyway and like the lighter sides or further analysis that often come in a GIF.
Lighten up, Roger. We #StandWithDeadspin and #StandWithSBNation. Let us enjoy stuff you aren’t going to do well or often enough. You won’t parody your own stars. Go away, dad.