Could That GIF Get You Sued?

The best brand marketers on Twitter are often praised for how human they sound and how much modern social savvy they bring to their posts. But sometimes there's a moment where even the biggest brands are reminded that they're not like everybody else. They're companies aiming to profit off their content, which means the rules of the road most of us follow as everyday civilians don't always apply. Case in point this week: GIFs and videos that originate on TikTok. The smartphone video app has become the hottest platform of the moment and is having a noticeable impact on pop culture, as best illustrated by the explosive popularity of meme fueler Lil Nas X. And like Reddit or Tumblr before it, TikTok's most popular content is spilling over into other platforms, like Twitter. That's where Pizza Hut's social team shared a popular meme video of Texas-based TikTok user Brittany Tomlinson, whose roller coaster of facial responses to sampling kombucha for the first time quickly became a metaphor for all conflicted emotions. Here's the original: [kickout id="1"] When Tomlinson spotted Pizza Hut repurposing her viral video on Twitter in a post about whether it would launch a new pizza in the coming month, she called out the brand, and her supporters backed her up. [kickout id="2"] [kickout id="3"] Pizza Hut deleted the tweet within a few hours of posting. Adweek reached out to the brand for comment but has not yet received an official response about the tweet. This story will be updated if we hear back. While the incident was fleeting and quickly quelled by the brand deleting the post in question, it did—or should—raise some alarm bells about the potential for seemingly innocuous posts to become legal liabilities. To help offer some guidance to marketers, Adweek reached out to Michael McSunas, a veteran attorney who specializes in advertising law. Way back in the dark digital ages of 2013, we talked to McSunas about the potential legal minefield of GIFs, which were just beginning to be added to social platforms beyond Tumblr. But the internet's come a long way since then, so we felt it was time for a 2019 refresher. Here's what McSunas, a former lawyer for Fiat Chrysler who's currently in-house counsel for sweepstakes and incentive marketing firm PrizeLogic, had to say this week about what marketers should keep in mind when using GIFs and similar repurposed content in social media: Who owns the rights to a GIF? Michael McSunas, general counsel, PrizeLogic: There are probably multiple “rights owners” involved with the GIF. There is the copyright holder, who is most likely the creator of the original work; the rights of publicity would belong to anyone who is shown in the GIF; and, possibly, the creator of the GIF, if the GIF is deemed to be a transformative or permissible derivative work under copyright law. So for instance, if the GIF is from a movie or TV show, you may need permission from whoever owns the copyright to the TV show, as well as permission from anybody appearing in that GIF. A new wrinkle these days are sites to which consumers upload content and which consumers give all ownership rights to that site. For example, the recent hubbub over the “Russian” app that people were using to age themselves. Apparently, the terms of that app allowed the app to use your image however they wanted–without your consent or compensation. In that case, the app would own the copyright and the right to make GIFs out of your image or video. There is also the issue of fair use. If a court would deem your use of a GIF “fair use,” then you would not need permission to use the GIF. However, if you are using a GIF for commercial purposes, it may be difficult to argue that your use was fair use. So just to be clear, if you wanted to use a GIF as part of your brand's social content, whose permission would you need? To be safe, a brand would need to get permission from: 1. The copyright holder of the underlying/original content 2. The creator of the GIF and 3. The person or people shown in the GIF. How much has this issue been tested in court? I have not heard of any actual judicial rulings on this issue. The NFL and other sports leagues routinely send takedown notices if GIFs from their games appear on sites. There is some worry that Europe’s new copyright law could cause platforms like Facebook and Twitter to filter out potentially infringing material, which could include GIFs and memes. Does it matter if a social post with an unlicensed GIF is organic versus paid or promoted? No. What probably is more important is whether the GIF is being used to sell a product or not. There is much lower risk for an individual using an unlicensed GIF than a brand. [kickout id="5"] What's the worst case scenario here for a brand that uses a GIF without proper permission, such as a CPG brand using a clip featuring a celebrity on a TV show? Worst case scenario would probably be if a brand showed a GIF of a celebrity and somehow implied that the celebrity was using their brand. For instance, the brand shows the GIF with the copy “(Name of Celebrity) loves using our product and you will too." In that case, I could see the celebrity suing for violation of rights of publicity. Would you advise brands to avoid GIFs altogether, if they didn't create them using 100% original brand content, or is there a way to use them somewhat safely even when you don't know their origin or ownership? As in-house counsel, you have to weigh the risks with the practical–meaning you have to also consider the implications to the business side. On a strictly legal side, due to the copyright and rights of publicity issues, I would advise against it. However, that is not really practical nor realistic in this day and age when brands are communicating with their consumers via GIFs and memes. With that in mind, I would advise brands to stick with GIFs available via the platform they are using—e.g. Twitter or Facebook. Use that button and search function on there. GIFs from reputable sites, like Giphy, lessen a brand’s risk as well. But even when using reputable GIF sites, should brands avoid ones that feature celebs and content creators such as influencers? [kickout id="4"] That is probably the safer route, but if it is a widely used GIF—like the Robert Redford one that everyone thinks is Zach Galifianakis—it's probably a lower risk as long as the brand is using it to respond to a consumer comment than if a brand uses a new or seldom-used GIF of an influencer. I think the important thing for brands is to not use the GIFs in a way that can be seen to promote their products or services. I would feel safer with a Tweet that just said, “It’s Friday” accompanied by a GIF, than a tweet that said, "How you feel when you use our product" accompanied by a GIF with a celebrity looking excited. Michael McSunas is in-house counsel for PrizeLogic. You can follow him on Twitter at @AdLawGuy.

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Could That GIF Get You Sued?

After Pizza Hut was called out by a content creator, a lawyer shares some guidelines for marketers

David Griner

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