"Mind the Steps," Ivan Rigamonti, CC BY-NC-ND 2.0.
Facebook recently caused a stir with its purchase of the GIF service GIPHY. Georg Fischer explains what is so special about short image sequences, why they sometimes become memes and what role copyright plays in this type of digital communication.
Those who send a message with a messenger service like WhatsApp or Telegram can not only decorate their text with numerous emojis, but also add small animations to it. These videos – known as "GIFs" (see box) – are only a few seconds long and repeat in a continuous loop.
GIFs are popular and are used daily by millions of people in digital communication. Large providers such as GIPHY or Tenor constantly provide new GIFs for integration in messenger services, email programs, social media or video platforms.
On GIPHY, many GIFs consist of user-generated content, i.e. they are created and uploaded by the users themselves . In addition, the company also partners with major media companies such as Disney or Universal Pictures to offer customized GIFs for movies and thus market them. In mid-May, GIPHY was sold to Facebook for $400 million.
This naturally raises questions: What is so special about these moving images?? What does Facebook want with GIPHY? And what to consider legally when using GIFs?
"Mic Drop" by Barack Obama (2016), by Jdlrobson under CC BY-SA 4.0.
A GIF says more than words: Aids to digital communication
In digital communication, people use GIF animations to illustrate a certain feeling or mood: If you’re tired, for example, you can select a cat curled up comfortably on the windowsill. If you want to express that you’re happy about something, you’ll find exaggerated cheering or happy dancing people in GIF collections. And for embarrassment or lack of understanding, there are amusing moving images of shaking heads or rolling eyes.
Media scientist Daniela Wentz explains that animated GIFs fill a gap in text-based digital communication. Because GIFs offer gestures and non-verbal forms of expression that would otherwise be missing or very difficult to convey in written communication such as chats.
"Happy Michelle Obama Gif," Source: GIPHY.
In the marketplace of moving images
The demand for GIFs is enormous: According to its own information, the major provider GIPHY supplies more than 700 million users every day with image material, including excerpts from TV shows, movies or video clips, which are taken out of their context, reduced to a few images and saved as short loops – and all this without a soundtrack, because GIFs are pure image formats.
More than ten billion silent image messages are sent via GIPHY in messengers, social media and emails every day. To do this, the moving images don’t even have to be downloaded from GIPHY and then uploaded again: GIPHY hosts the images and embeds them via links in the respective services, making it convenient for users* to use them.
But the huge amounts of visual material have to come from somewhere. GIPHY itself obtains a large part of its material from user-generated content, i.e. from the users themselves, who upload it to the platform.
GIPHY grants itself extensive rights of use
This is subject to terms and conditions that are similar to those on other websites: GIPHY requires all users who upload something to the platform to have clarified all image rights or to own the image material. With this, GIPHY secures itself in the event of any rights violations hab.
At the same time, the platform grants itself extensive rights of use and exploitation of the uploaded images. In other words, no legal risk for GIPHY and no involvement whatsoever from the users who give their material. Who does not want to get involved in these terms and conditions, must refrain from uploading.
GIPHY works like a large collection point for GIFs: The website stores numerous image messages on various topics, processes them with keywords and makes them available again via a search function. Because of the way it works, GIPHY is therefore also known as a GIF aggregator. But why is Facebook paying $400 million for such a service?
Facebook vs. Google, GIPHY vs. Tenor
For the industry giant Facebook (stock market value 2019: 582 billion dollars), the great popularity of GIPHY was an important criterion for the takeover. Observers assume that Facebook is primarily interested in the data that provides information about the use of GIPHY – and thus about the users themselves.
Because acquiring GIPHY not only gives Facebook access to the GIF platform, it could also analyze user behavior – both inside and outside of Facebook. In addition, with the GIPHY takeover, Facebook is now on an equal footing with rival Google, which secured the GIF provider Tenor in the spring of 2018.
Both Tenor and GIPHY offer special apps that allow countless GIFs to be integrated into the digital keyboards of smartphones . GIPHY is also already integrated into numerous services and apps. Most of them don’t even belong to Facebook. But the GIFS that are shared via GIPHY contain links: When a user opens a message with a GIF from GIPHY, the image is loaded via the link and displayed as an embedded image.
Tailored ads and detailed sentiment images
By tracking and mining the GIPHY links, Facebook could evaluate the behavior of people who aren’t even logged into Facebook. By combining it with other metadata such as location, the apps used and other information, a revealing picture of users would emerge.
Trends, such as the mass use of certain apps, would also be easier for Facebook to identify with the GIPHY data. In addition, GIFs convey feelings, moods and emotions more accurately than Facebook’s Like functions can.
If Facebook aggregates this data with search queries and other metadata, it could output detailed sentiment data. Facebook could use this information to play out tailored ads: on Facebook itself as well as on Instagram, which, like Whatsapp, belongs to Facebook.
When GIFs become memes
But Facebook is not only acquiring a media company, it is also securing GIPHY, a key player in digital communication. The Internet giant thus consolidates its position as a communications platform vis-à-vis Google.
Because the practice of creating GIFs and using them to express feelings, opinions and moods is part of two larger Internet trends, communing over memes and remix culture.
GIFs can become memes. This is the case when many people share the image or video or subsequently edit or remix it themselves – for example, by adding their own text – and also publish these variations on the Internet.
Well-known examples are the grouchy cat "Grumpy Cat," the desperately annoyed gesture of the captain from Star Trek Jean-Luc Picard, or the GIF with "Game of Thrones" actor Sean Bean and the sentence beginning "One does not simply …". Memes are characterized by the fact that they quickly make the rounds, are varied en masse, and become well-known in the process.
Through mass use and change, they burn themselves into the collective memory – and are the modern, visual form of a winged word or a saying.
"Party Over Gif," Source: Tenor.
The origins of remix culture in music
One of the starting points for the importance of GIFs today is remix culture. People can use computers and mobile devices to quickly and easily creatively edit, combine, and create their own versions of the work of others. How GIFs and memes are created.
Techniques of sampling, mashups or remixes were popular even before digitization – collages have existed in the visual arts since the beginning of the 20th century. Century. In music today, they are particularly widespread in hip hop and techno.
Like remixes in music, however, GIFs and memes are also not without copyright problems. In most cases, the images or image sequences used are protected by copyright. Therefore, the question arises whether GIFs and memes can be created, shared and distributed without hesitation at all.
This question is not so easy to answer so far. In Germany, there is no clear regulation on memes or GIFs, nor is there a court ruling that could be used as a guideline. Instead, they operate in a legal gray area.
Memes, GIFs and copyright law
The legal copyright protection includes not only complete works, but also parts of them. This means that even short excerpts or even individual still images from a video can be protected and you have to obtain exploitation rights or licenses in order to publish a sequence that has been used or edited.
Some media companies that acquire so-called exploitation rights from musicians, screenwriters and actors and produce films or TV shows insist on legal copyright protection even for the smallest film sequences or image sequences.
European and German copyright law does recognize exceptions to this permission requirement, such as for quoting from works or for parodies. However, legal experts doubt that the right of quotation or the exceptions for satire apply to memes, because they are usually too similar to the originals and do not explain them further.
The special attraction of memes, however, lies precisely in the fact that users recognize the template and continually reinterpret and further develop the image message. Leonhard Dobusch therefore also characterizes memes as "low-threshold popular culture based on everyday creativity". In other words, memes often do not have a clear originator, but are created through general communication between ordinary people.
However, the jurisprudence has not yet found a clear copyright assessment or classification for precisely this special quality of communication. The EU copyright reform passed in 2019 doesn’t really address memes, so it doesn’t provide a basis for clear assessments.
The discussion draft of the German Ministry of Justice published at the beginning of 2020 also did not create any clarity: here, there was only talk of image providers (such as the search engine Google, but possibly also private blogs) being allowed to offer free thumbnails only in a maximum resolution of 128 by 128 pixels. This would be a small format with low image quality, reminiscent of the GIFs of early Internet communication, and technically a clear step backwards.
However, nothing has been finally decided yet: EU member states have until June 2021 to implement the requirements of the EU copyright reform into national law.
Can GIFs and memes drive demand for originals?
On the other hand, it is possible to argue that GIFs or memes do not actually harm the original work. If, for example, a short scene from a feature film were to be edited into a GIF, this would not lead to fewer people watching the original film.
Some even argue that memes and GIFs can increase demand for the originals in certain cases: the short clips are comparable to advertisements that would make you want to watch the whole movie. Similar to merchandise, i.e. promotional items such as stuffed animals of movie characters, GIFs and memes would rather serve to accompany a movie, to market it and to remind consumers of it.
With the purchase of GIPHY, Facebook could take advantage of the demand for fresh GIFs and work even more closely with the film industry in the future to use GIFs from current films and thereby promote the films. This would not weaken the demand for the original films, but even boost it.
Copyright: What could happen to you?
As long as you send existing GIFs and memes to other users embedded in messenger services, for example, there will probably be no problems. It is to be expected that the right to private copying, i.e. the so-called private copy barrier, could be applied to such use.
It could be more difficult if you publicly post GIFs that contain copyrighted works for which you do not have the rights. However, copyright holders often tolerate such content being shared on social media.
Normally, the worst thing that could happen is the blocking of the uploaded content. Theoretically, it is possible to be warned for a meme or GIF, but this rarely happens.
At the latest with the arrival of messengers and social media platforms, GIFs and memes are part of everyday communication. They have the important function of conveying moods, feelings and irony that would otherwise fall by the wayside in written chats.
Although memes in particular that don’t come from GIF aggregators like GIPHY are often in a gray area copyright-wise, you’re unlikely to run into problems when communicating privately. As a rule, publicly shared images are also tolerated by the rights holders.
It is a bit more complicated if you upload content to GIPHY yourself: Because GIPHY, like Facebook and other Internet platforms, lives from the use and exploitation of user-generated content. This means that as a user you have to agree to GIPHY’s terms and conditions and give up far-reaching rights. At the same time, users have obligations, such as agreeing not to infringe copyrights on uploaded content.
The takeovers of GIPHY by Facebook and Tenor by Google two years ago show that platforms are taking the colorful moving images and the Internet trends behind them seriously, even considering them as a possible source of added value: especially when it comes to the analysis of digital, combined data sets of users.