You may be tempted to Vine or GIF your favorite moments from this afternoon’s World Cup game against Belgium. But before you aim ye olde smartphone at the nearest TV, consider the fate of @ReplayLastGoal — the brilliant Twitter account that GIF-ed shots from the World Cup and got slapped with an infringement complaint over the weekend.
“We have noticed that the account … is displaying and/or offering 2014 FIFA World Cup Brazil audio visual content,” reads the complaint FIFA sent to Twitter. “Please immediately cease all infringements on this channel.”
Wait — seriously?
FIFA is, of course, notoriously protective of its intellectual property. For years, the organization has gone after businesses — even small businesses — that print its slogan on T-shirts or slap its logo on billboards without official permission. Since 2012, FIFA’s had Twitter in its sights: It’s issued take-down requests to dozens of Twitter accounts that used its logo, including a small-time Texas brewery that tweeted the image with a message about World Cup specials. The tweet, sans image, is still online.
But logos are one thing — GIFs of gameplay are something else entirely. After all, a GIF is fundamentally different from live footage of a game in a way that a copy/pasted logo is not. For starters, a GIF is just a tiny, degraded clip of a much longer video. It takes some measure of creative and technical skill to make. Not to mention, GIFs have quickly become an Internet staple of every major sporting event the world over. Doesn’t that count for anything?!
In truth, it probably does. (At the very least, it should.) Legal experts like Harvard’s Andy Sellars have argued that GIFs are an example of “fair use,” the same copyright-infringement defense that protects music critics when they quote a song in an album review. In a nutshell, these people say, GIFs are transformative works — they’re fundamentally different from movies or TV footage, they exist to comment on that footage, and they don’t hurt the market for that movie or TV show.
And yet! Fair use is tricky. It’s a technical defense in a copyright suit, not a blanket justification for doing whatever you want online. That means there’s no hard-and-fast rule. At the end of the day, what constitutes fair use is determined by juries on a case-by-case basis. To further muck the issue up, no U.S. jury has looked at GIFs yet — perhaps because neither the FIFAs nor the @ReplayLastGoals of the world think the issue’s worth going to court.
That said, plenty of GIF accounts — including @ReplayLastGoals! — continue to soldier on. Xavier Damman, the guy behind that particular account, told the Post he’d comply with Twitter’s decision when the network ruled on FIFA’s complaint; until then, he’s still tweeting. @VinesWorldCup and @MashableLive also continue to tweet game footage, while SB Nation has kept posting Vines through two account deletions. (Their current burner account name: “Goooooal!”)
Unfortunately, until FIFA takes one of these accounts to court, we’ll never really know who’s in the right. In the meantime, let’s be real — there are still tons of World Cup GIFs on Twitter. They could just go dark at any time.