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Are viral sports GIFs violating 'fair use'?

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RaunS | Getty Images

Twitter's takedown of SB Nation and Deadspin accounts due to alleged copyright infringement shocked many publications that rely on "fair use" laws to do quick takes on pop culture moments on social media. The issue may be bigger than simply sports leagues versus media companies: It could be a sign that social media's reach has made some copyright laws antiquated.

"I think technology has outstripped the law," said University at Buffalo Law School adjunct professor Nellie Drew. "Now you can instantaneously capture a television screen and send it to everyone."


For years, many publications have been employing so-called fair use rules to display clips of copyrighted content. The legal doctrine allows an outlet to use some protected materials as long as it illustrates an instrumental part of the story.

Recently, the NFL, the UFC, and the Big 12 and Southeastern collegiate sports conferences sent claims to Twitter that several accounts were using their copyrighted material. Much of the content was not video pulled directly from broadcast but in soundless GIF form. Among the alleged violators was @SBNationGIF, which is run by Vox Media's SB Nation, and @Deadspin, which is owned by Gawker Media.

The NFL confirmed that it sent several notices to Twitter about several companies, including Deadspin as part of its copyright enforcement program. However, it did not ask for any account to be suspended.

According to the complaints, which were provided to CNBC by Twitter, neither the NFL nor the college conferences asked for accounts to be disabled. The UFC specifically requested the termination of accounts and access for those it believed were using its content illegally.

SB Nation sent the following statement: "SB Nation received an email from Twitter notifying us that the @SBNationGIF account had been suspended, due to a DMCA notice Twitter received related to several gifs and vines sent from the @SBNationGIF account, which contained content from college football game broadcasts. The DMCA notice came from XOS Digital, a third-party rights organization. We are working with Twitter to resolve the issue and restore the account. All other SB Nation accounts are in good standing. We take copyright infringement issues seriously and always try to keep our use of unlicensed third-party footage within the bounds of fair use."

XOS Digital vice president of licensing and partnerships Ben Godwin, which has a content representation partnership with the Big 12 and SEC, explained that its Twitter claim on behalf of the conferences was part of its standard copyright enforcement procedures. He confirmed that it did not ask for any account to be suspended.

A UFC representative said in a statement that it works with media outlets and social media sites that "value the worth of intellectual property," but issues takedown requests when they see sites using its unauthorized content.

"The UFC organization has been at the forefront of communicating with its fans on social media and continues to be a leader in providing exciting and dynamic content," it said. "The organization makes usage guidelines available to all outlets who wish to use UFC GIFs and video content to support their coverage of UFC and the sport of mixed martial arts."

Gawker Media did not respond to requests for comment.

Drew said that part of the problem with current fair-use rules is that social media have changed the game, so to speak. Fair use was intended to help further public interest when it came to news, analysis and even parody content. The problem is that because social media has such vast reach, much fair-use content is blocking the rights of individuals to monetize their rightful content.

"(Social media reach) was not anticipated with fair use," she said. "The ability to widely disseminate these things is different from me showing you a picture I took from the game."

ThePostGame founder and CEO David Katz explained that GIFs are an easy way to get fans on board with your content and connect with them. However, his outlet never felt comfortable clipping copyrighted content for legal issues.

"There was a belief that because the use of GIFs was never contested by the leagues, and not directly monetized by the publishers, that it was an acceptable practice," he said. "Years of no enforcement have led to widespread usage."

The problem is, GIFs can be used to grow affinity for a publication, which, in turn, can be monetized. On the flip side, viral moments can be leveraged for advertising opportunities by the creator of the original content.

Drew gave the example of Marshawn Lynch's famous interview where he responded to reporters' questions with "I'm just here so I don't get fined." Snippets of the interview soon surfaced across the Internet. But the statement actually had commercial value for the Seattle Seahawks running back. He copyrighted the statement in February 2015 and has since leveraged the infamous statement through several ad deals, including a wordless Pepsi commercial where he was a "spokesperson" for the product.

"There was commercial value down the road," she said. "The problem is, have you abandoned your rights by not protecting (these clips) accurately?"

Jill Sherman, the senior vice president of social strategy and the social practice lead for agency DigitasLBi, said that brands and publishers should operate as if everything is copyrighted and ask for permission to err on the side of caution. When it comes to repurposing content already on social media, knowing community guidelines is key.

If you're a brand or publisher who sees your content being used, knowing your rights through the Digital Millennium Copyright Act is also important, she added.

"That said, removing entire accounts that contain questionable content may be over-policing on Twitter's part," she said via email. "Creating an environment where people become afraid to tweet potentially copyrighted content lest they get shut down, could backfire in the long term. Twitter is a content sharing platform, after all. It's about striking a balance that encourages sharing while discouraging egregious abuses."

But Post Game's Katz understands the argument on both sides.

"Fair use on the Internet is not an established doctrine the way it is on television," he said. "Eventually that will have to be resolved as the distinction between which screen the images appear on becomes less and less relevant."

Update: The story was updated to include statements from XOS Digital and the UFC.

Note: NBC Universal, which is the parent company of CNBC, is an investor in Vox Media.