[originally published on October 13, 2015 at www.law-dlc.com]

As a sports fan, Monday, October 12, 2015 was a strange and turbulent day.  USC fired Steve Sarkisian one day after asking him to take an administrative leave of absence (cue the employment lawyers).  Steve Spurrier, the head coach of the other USC – South Carolina – suddenly walked away and called it a career in mid-season.  Meanwhile, Texas Governor Greg Abbott congratulated the Astros on making the American League Championship Series when they were leading 6-2 in the eighth inning, only for the Royals to score five quick runs and turn me into a blubbering mess of a baseball fan.  Someone in the governor’s office forgot about Yogi Berra and “it ain’t over ‘til it’s over.”

Yet the craziest sports story of the entire day might be something that happened over social media.  In the mid-afternoon, the Twitter accounts for Deadspin (@Deadspin) and SB Nation’s GIF-based sub account (@SBNationGIF) were suddenly suspended.  The initial reasons were murky, with media reports later suggesting that the National Football League used its influence with Twitter to suspend the accounts.  And why?  Because the Deadspin account and the SBNationGIF account both routinely posted or re-tweeted Vines and GIFs of highlight plays from NFL games. Which are copyrighted works.

Alleged Copyright Violation(s)

The Gawker Twitter manager posted in the evening that Twitter received DMCA (Digital Millennium Copyright Act)[1] complaints regarding use of copyrighted material by these accounts.  The strong indication was that the NFL sent the DMCA complaints.

The NFL then released a carefully-worded statement about the matter:A couple hours later, the accounts were re-activated. “The NFL sent routine notices as part of its copyright enforcement program requesting that Twitter disable links to more than a dozen pirated NFL game videos and highlights that violate the NFL’s copyrights. We did not request that any Twitter account be suspended.”

This is not uncommon for the NFL.  This is an organization that routinely threatens sports bars and stores to refrain from using the term “Super Bowl” to identify the Super Bowl®.[2]  We have also been repeatedly informed of the NFL’s copyright notice when we watch live, televised games:

“This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.”

NFL games are subject to copyright law.  We can all generally agree with this.  Does that apply without limitation to the internet and social media though?

Copyrights and Social Media

It is easy to pick on the NFL when it comes to modern technology and the internet.  The league is practically inviting commentators to mock it for its copyright policies and its backward-thinking approach to social media.  You certainly will not find me praising the NFL for its heavy-handed and draconian attempts to enforce its copyrights. Even baseball has learned to embrace YouTube and other social media outlets.  Baseball!  The sport that is mostly stuck in the 1950s when it comes to policy and tradition.  But is the NFL wrong?  Legally speaking, does the NFL have the legal right to stop the sharing of Vines and GIFs by third-party sites?

Vines are short (six-second) looping videos that have grown substantially in popularity over the last two to three years.[3]  Similar to Vines are GIFs, which are animated graphic images that have the appearance of videos.  GIFs are also everywhere on social media, especially on Twitter and Tumblr.

Are Vines and GIFs copyrighted?  Yes.  Pursuant to 17 U.S.C. § 102(a), they are pictorial or graphic works (or motion pictures or other audiovisual works) that are original works of authorship fixed in a tangible medium of expression.  Does the NFL own these copyrights?  Yes.  Every player, coach, participant, camera operator, videographer, broadcaster or anyone else affiliated with the television broadcast of NFL games likely agrees to assign or transfer any works of authorship to the NFL.  For example, that famous Odell Beckham, Jr. catch from last year?  Beckham is the athlete that made the catch but the copyright author is the videographer who filmed the act in progress.  That videographer granted the NFL rights to his works in exchange for monetary compensation.  The NFL owns the copyright to the video.

But what about the Vine or GIF of the catch – that is not the same as the video itself.  It has been modified for the internet, right?  Well, yes and no.  Any Vine or GIF of a play taken from an NFL video is admittedly not the same media.  Copyright law addresses this, however.  Pursuant to 17 U.S.C. § 101, these Vines are considered “derivative works” that are based upon one or more preexisting works, which includes any “work” which may be recast, transformed, or adapted.  Furthermore, pursuant to 17 U.S.C. § 106(2), the NFL as owner has the exclusive right to “prepare derivative works based upon the copyrighted work.”  Accordingly, only the NFL has the right to make Vines and GIFs that are derived from its copyrighted video recordings.  If you want to make and distribute your own GIFs, you need the NFL’s express permission.

That does not strike you as “fair,” does it?  Certainly this should constitute “fair use” as set forth by current standards of copyright law.  Well, maybe.

Copyright Fair Use and Social Media

Fair use is broadly defined by Section 107 of the Copyright Act.  Interestingly enough, this most recent copyright dispute with the NFL occurred just a few weeks after the Ninth Circuit held that prior to sending a DMCA copyright takedown notice, a copyright owner must explore the possible fair use applications of the work in question.[4]  Accordingly, was Deadspin and SB Nation’s collective use of Vines and GIFs permitted “fair use” of the NFL’s copyrighted images and video?  Let us explore.

The Copyright Act acknowledges that authors and owners hold certain exclusive rights to their copyrighted works.  These rights are not universal and they are not without limits.  The most common exception is third party fair use.  In events where the use of copyrighted work serves the purpose of “criticism, comment, news reporting, teaching … scholarship, or research” it is deemed to not be an infringement of a copyrighted work.[5]  It does not take a logical leap to contend that Deadspin and SB Nation were in the act of criticism, comment or news reporting when it posted these videos and images.  Unfortunately, these categories are not absolute nor should they be deemed as wholesale safe harbors.

The categories are intentionally vague so as to allow for application of subjective fair use factors.  It is a sliding scale applied on a case-by-case basis. The factors are set forth as the following:

(1)        the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2)        the nature of the copyrighted work;

(3)        the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4)        the effect of the use upon the potential market for or value of the copyrighted work.[6]

Purpose and Character of the Use

Deadspin and SB Nation are both commercial entities that profit from the commentary and reporting on sports events and related off-field sports stories.  The use of Vines and GIFs may not directly generate revenue for these sites, but it does draw viewer attention.  While the specific Twitter accounts may not have advertising benefits, the Twitter accounts may be seen as a gateway to the main Deadspin website (www.deadspin.com) or to SB Nation’s site (www.sbnation.com).

The purpose of the use of these Vines and GIFs are also to add a certain storytelling flavor to any tweets.  It may be of a critical, commentary or news reporting purpose, but the implied purpose is to get eyes on the page and to add additional followers.  The number of followers a Twitter feed has can be correlated to commercial value by itself.[7]  The @SBNationGIF twitter feed is entirely based on GIFs, most all of them being copyrighted and owned by professional sports leagues.  The NFL could readily contend that this Twitter site’s commercial value is fully dependent on use of copyrighted material.  In that context, this would not favor “fair use.”

The Nature of the Copyrighted Work

This factor considers the informative or entertainment value of the work.  The Supreme Court has held that copying a news broadcast may have a stronger claim to fair use than copying a motion picture.”[8]  These social media accounts blend both categories.  They serve to inform the reader of sports news through entertaining and often humorous Vines and GIFs.  The underlying work, however, is of an entertainment value.  The NFL’s value is through entertaining its fans and the distribution and broadcast of games and highlights is the primary source of that entertainment.

While sports blogs serve to critique leagues such as the NFL and they inform and comment on the various news stories of the day relating to sports, the use of copyrighted GIFs does not directly serve to inform.  These GIFs are entertainment pieces added on to support the criticism and commentary.  A Vine by itself is unlikely to fully report on recent NFL news.  The NFL and its strong lobbying interests are sure to claim that it is an entertainment vehicle and not a news reporting organization.  The use of its copyrighted works would therefore undermine its ability to entertain its consumers.  While this is not dispositive and there are arguments to be made on the other side, the point is that it is not yet a clear cut case of fair use.

Amount and Substantiality of Portion Used

Here is where the sports blogs may have their best argument.  Vines and GIFs are intentionally short.  They are only a few seconds long.  The average NFL game exceeds three hours, including commercial breaks.  The actual game time is sixty minutes, or longer in the event of overtime.  If a Vine is six seconds long, it is 1/600th of the amount of the actual game time of an NFL contest.  This is but a very small portion of the copyrighted broadcast.

Of course, this fair use factor considers not just the quantity of the work but also the quality of the material used by the third party.  The NFL may contend that these Vines and GIFs extract the most important parts of the game – the highlights – and that this negates the less than one percent use of the entire broadcast aspect.  Even though the game is sixty minutes long, it may come down to only a few key plays, each of which has now been transformed and shared as a GIF without permission.  While I believe this factor may heavily favor social media’s claims to fair use, it is also not dispositive.

Effect of the Use on the Potential Market

The last factor may be the most important.  This is where the NFL’s claim to commercial value is put to the test.  Does Deadspin and SB Nation’s use of six second copyrighted works threaten the potential market for the broadcast of NFL games?  This factor’s purpose is to balance the public benefit from fair use with the NFL’s pecuniary gain if the use is limited or prohibited.  If the NFL cannot demonstrate empirical evidence of market damage through the use of Vines and GIFs by third party social media outlets, the NFL’s case against fair use is likely to be undermined substantially.

The NFL is a marketing behemoth.  I would posit that the unauthorized distribution of Vines and GIFs actually helps the NFL market its brand and adds value to its copyrighted works.  Granted, the NFL has a valid point when it contends that the same Vines and GIFs can be found on the NFL’s authorized websites (www.nfl.com and others).  This fact alone, however, does not provide evidence of actual market damage to the NFL’s copyrighted works when Vines and GIFs are distributed by third party websites and through social media.

Conclusions?

Based on the foregoing and the heavily subjective nature of a “fair use” analysis, I would be hard-pressed to provide any solid conclusions one direction or the other.  There are strong policy and commercial-based reasons to contend that the NFL is correct in enforcing its copyrights.  There are equally valid arguments to be made by social media sites that their use of Vines and GIFs are not a threat to the NFL’s potential market and that the commentary, criticism and reporting nature of their sites supports a “fair use” determination under the law.

Professional sports leagues have lost “fair use” disputes in the past.  For example, the reporting of live statistics while the game is still being broadcast has been deemed fair use (as news reporting of facts).  While the NFL does own copyrights, these rights are not absolute and they are not without limitations.  It should also be noted that the NFL has a pecuniary interest and a contractual relationship with Twitter,[9] which almost certainly influenced the decision to suspend these particular Twitter accounts.  The NFL has a powerful lobby, while sports media sites and blogs lack the same leverage.  Gawker and Vox Media[10] are not small corporate entities, but are effectively infinitesimal compared to the NFL’s relative size and influence.  Should these companies put up a legal fight, this will be an interesting dispute to follow as copyright law attempts to adapt to the dynamic social media landscape.

Disclaimer: I have a working relationship with SB Nation and Vox Media.  In 2008, SB Nation purchased a sports blog I co-created and owned (www.thedreamshake.com).  I am no longer actively contributing to that website.  I also previously had commenter rights on Deadspin and frequented the site.  Of course, I also watch NFL games routinely and consider myself a fan of the league’s products.

[1]  17 U.S.C. §§ 512, 1201 et seq.

[2] This may be a topic for another time, but I firmly believe that third-party use of the term “Super Bowl” to describe the NFL’s annual championship game is the most classic example of “trademark descriptive fair use” that there is.  But the NFL is a large entity and it is not in some entities’ best interests to be on its bad side.

[4] See Lenz v. Universal Music Corp., 2015 U.S. App. LEXIS 16308 (9th Cir. Sept. 14, 2015).

[5] 17 U.S.C. § 107.

[6] Id. at (1)-(4).

[8] 464 U.S. 417 (1984).

[10] Gawker owns Deadspin and Vox Media owns SB Nation.