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Is It Legal to Post Sports GIFs on Twitter?

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By Christopher Coble, Esq. on October 14, 2015 3:55 PM

Your ability to see snippets of sports highlights, or lowlights, on Twitter may be in danger. On Monday night, Twitter temporarily suspended accounts for Deadspin and SB Nation. Although Twitter hasn't commented publicly about the suspensions, they were presumably in response to complaints from the NFL regarding the use of copyrighted game footage in GIF format.

While Deadspin's account was reinstated about an hour after the suspension, SB Nation's highlight account, @SBNationGIF, remains suspended as of this posting. And the entire episode raises questions about copyright, free speech, and access to social media.

DMCA Takedowns

Twitter gave NBC News the "takedown notices" filed by the NFL, the Big 12, the SEC and UFC, claiming Twitter was violating the Digital Millennium Copyright Act (DMCA) by hosting specific tweets by the Deadspin and SB Nation accounts. The takedown notices don't ask for accounts to be suspended; the NFL's notices at least only ask that "Twitter disable links to more than a dozen pirated NFL game videos and highlights that violate the NFL's copyrights."

The DMCA was enacted to update copyright laws in the Internet age, and allows copyright holders to go after websites that host shareable content subject to copyright protection. Initially aimed at file sharing sites like Napster, the DMCA has also been invoked against YouTube, Twitter, and other social media sites where users have posted copyrighted material.

Under the DMCA, copyright holders can issue takedown notices to websites asserting their copyrights. Here's how the process goes, hypothetically:

  • Deadspin tweets a GIF of a play from an NFL game.
  • NFL sees the GIF and decides it falls under their copyright protections.
  • NFL issues a takedown notice to Twitter.
  • Twitter removes the content, and notifies Deadspin of the removal.
  • Deadspin may respond to the takedown notice, and request the tweet be reposted.
  • Twitter notifies the NFL, who has two weeks to file a lawsuit.
  • If the NFL does not file a lawsuit, Twitter can repost the tweet.

Whether any or all of these steps were taken in this case is unclear. (A quick scan of Deadspin's feed shows that at least some tweets containing NFL GIFs are still posted, while @SBNationGIF remains dark. Neither Deadspin nor SB Nation has publicly commented on any litigation, although Deadspin editor-in-chief Tim Marchman and columnist Drew Magary discussed the suspension via podcast on Tuesday.)

Fair Use and Fair Play

As Marchman and others have carefully pointed out, the central defense to this use of GIFs is that they fall under fair use exceptions to copyright laws. Fair use allows the use of portions of a copyrighted work without the copyright holder's permission in certain circumstances such as commentary, criticism, news reporting, teaching, scholarship, research, or parody.

Courts will generally apply a four-factor test to determine whether the unauthorized use of copyrighted material is fair:

  1. The purpose and character of the use, including whether such use is of a commercial nature.
  2. The nature of the copyrighted work (artistic works or fiction get more protection than factual works).
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for or value of the copyrighted work.

In this case, Deadspin and SB Nation would argue that (1) they were merely posting GIFs for free and not for commercial use (though the NFL might say the GIFs draw attention and traffic to the sites); (2) the games are factual works, not unlike a public speech or news article; (3) compared to the length of a game, a short GIF is a relatively minor portion of the overall copyrighted content; and (4) posting the GIFs actually adds to the value of the NFL's content, since it increases interest in the games.

Again, whether and where these arguments have been made, and to what extent a court would find them persuasive remains undetermined. There are, to date, no court cases regarding the use of sports GIFs on a social media site like Twitter.

There was, however, a recent Ninth Circuit decision that requires copyright holders to consider whether fair use exceptions apply before issuing DMCA takedown notices. In that case, a mother was awarded damages because Universal Music failed to consider fair use before issuing a takedown notice to YouTube, asking for the removal of a video of the mother's baby dancing to Prince's "Let's Go Crazy." The same rationale could be applied here, if the NFL and other leagues failed to consider fair use before issuing takedown notices to Twitter.

Suspended Social Media

As a private company, Twitter is permitted to limit free speech on its platform according to its terms of service -- the First Amendment's freedom of speech protections generally only apply to the government. That said, Twitter's value to its users as a social media platform would diminish if it began censoring user content based on issues other than harassment and user safety.

There is also the issue of removing content (specific tweets and links) based on copyright issues versus suspending accounts entirely. Clearly not all of Deadspin's tweets include NFL GIFs, although this may be why their account has been reinstated while SB Nation's GIF account remains suspended. The DMCA applies only to copyrighted content, not user accounts.

And lurking behind all of this is the NFL's deal with Twitter to provide "programming" like in-game highlights and clips to Twitter users. How far the NFL goes to protect that deal, or, conversely, how far Deadspin, SB Nation, or other users go to assert their right to use GIFs of copyrighted content in their Twitter feeds remains to be seen. But feeds giving us easy access to the best and worst moments of games remain appointment viewing.

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