Are viral sports GIFs violating ‘fair use’? – CNBC

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.”

The Post Game 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?”