Are GIFS copyright infringement

A glance, a gesture or a tough onliner are often enough to tell a short story in animated GIFs. For millions of smartphone and social network users, it is now commonplace to exchange animated GIFs with those around them. After all, they are sent faster than typing a message on the touch screen. Since apps like Facebook Messenger or WhatsApp have directly integrated the GIF search engine GIPHY, it is easier than ever to send the digital flip book.

Many GIFs are finished products from often unknown web sources. They often show scenes from Hollywood films and series. Can everyone really just share them or even upload them publicly to Facebook? I spoke about it with Christian Solmecke, lawyer for IT, media and internet law at the law firm Wilde Beuger Solmecke.

To what extent is it legal to use animated GIFs from the web?

Christian Solmecke: GIFs are no different from images in other formats such as JPEG. GIFs are ultimately just individual digital images in a row. The legal situation is clear. If GIFs show funny scenes of specifically recognizable people, they do not have to tolerate the publication of their picture without their consent. If other protected content such as a brand or a cartoon character is shown instead, users must ask the rights holder for this content's permission. Unless the rights holder has put the GIF online and expressly approved it for use.

If I take animated GIFs from the big search engine Giphy, that's probably legally ok, isn't it? In addition to users, Giphy employees also upload GIFs and curate the offer.

If the material comes from users, I as a consumer cannot be sure whether I can use the GIFs. And even if they're curated by Giphy, that's not a free pass. It doesn't mean that Giphy has the usage rights for it. If the rights are not available, the provider cannot pass them on to the users. A comparison to the Google image search is useful here. There, users also have to distinguish whether the images are protected or released for use. Likewise, consumers are not allowed to carelessly use every GIF on GIF websites. If the rights holders become aware that protected content is being used, there is a risk of a warning and, if necessary, the payment of damages.

The source material for finished GIFs are often excerpts from Hollywood films and series. Giphy is already entering into partnerships and opening its own channels for series or music stars. Do users really have to fear the warnings from the entertainment industry?

I am not aware that US content providers are pursuing this on a large scale. In the USA, however, the legal situation is also different. There you can use copyrighted material for educational or creative purposes without infringing copyright.

However, this so-called 'fair use' legal doctrine does not exist in Germany. Since the rights of use for films and series, for example, are assigned territorially, they may be available to American users, but may not be used by users in Germany.

This distinction is of course difficult to make out for users in their everyday network. After all, the GIF integration of American apps such as Facebook Messenger and WhatsApp can also be used in Germany.

In fact, this is a gray area, we have not yet reached the end of the jurisprudence. But the fact is: when I use content from the Internet, I have to think about whether I can use it. Many users are not aware of this. In case of doubt, this does not protect against punishment.

How big is the risk in practice of receiving a warning? Especially since the use in Facebook Messenger or WhatsApp does not take place publicly.

Animated GIFs are currently not the focus of a wave of warnings. In general, however, image rights are taken very seriously in Germany and illegal use is very often warned. Anyone who downloads third-party GIFs from the Internet and then publishes them in the chronicle on Facebook, for example, must be particularly careful.

Thank you for the interview, Mr. Solmecke.

Image & Screenshots by Berti Kolbow-Lehradt

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Berti Kolbow-Lehradt

is a freelance technology journalist. For the Netzpiloten, he deals with many aspects of the digital world. This includes the smart home, photography, smartphones, the Apple world and other areas of consumer electronics and IT. Member of the Netzpiloten Blogger Network.

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Keywords: warning, animated GIFs, animated GIF, chat, Facebook Messenger, fair use, GIF, Giphy, interview, communication, messaging, lawyer, legal situation, legal security, smartphone, WhatsApp