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Shortly after The Mandalorian premiered on Disney+, ‘Baby Yoda’ GIF images went viral as fans obsessed over the character’s cute and innocent demeanour. Star Wars groupies became furious however, when the GIFs disappeared almost immediately from host website GIPHY. 

A statement released by GIPHY indicated that the GIFs had been removed because of “some confusion” rather than at Disney’s request. 

Although the images have since been restored, the fiasco raises a question about whether posting GIFs of an original work, constitutes a copyright infringement. Under US law some experts suggest that GIFs likely constitute ‘fair use’ of the copyright material - a defence to copyright infringement. As explained by IP specialists Sheree Hollender and Matt Keevers, the situation is likely to be less straightforward in Australia.

Australian copyright law

In Australia, a person infringes copyright if they take an action comprised in the copyright, without the copyright owners’ licence. This includes unauthorised dealings with a substantial part of the work, as determined in the circumstances of the case. Whether the action uses a substantial part of the work, is determined by whether the part is considered an important, essential or material part of the work. A small portion of any work may therefore qualify as substantial if it is a critical part of the work, thus its unauthorised use could be viewed as an infringement of copyright.

Fair deal vs Fair use

The “fair dealing” defence to copyright infringement available under the Australian Copyright Act 1968 (Cth) is narrow compared to America’s “fair use” defence. The fair dealing defence does allow (amongst other things) copyright works to be used for the purpose of criticism or review, provided that the author sufficiently acknowledges the copyrighted work by identifying the original author and title of the work. This is a moral right protected by the Copyright Act

The fair dealing defence covers criticism or review which analyses and judges the quality of a work on its merits. This applies to any form of criticism where the author evaluates the work, including literary or other criticism. With respect of the average GIF-sharing internet user, this defence would not likely apply. A distinction can be made between comparing two hypothetical scenarios; where a GIF section from a film or television show is shared as part of an online review, as opposed to a user simply collating various GIFs from copyrighted works or spontaneously sharing a GIF online. 

The fair dealing defence covers criticism or review which analyses and judges the quality of a work on its merits. This applies to any form of criticism where the author evaluates the work, including literary or other criticism. With respect of the average GIF-sharing internet user, this defence would not likely apply. A distinction can be made between comparing two hypothetical scenarios; where a GIF section from a film or television show is shared as part of an online review, as opposed to a user simply collating various GIFs from copyrighted works or spontaneously sharing a GIF online. 

Baby Yoda GIFS down under

Would the fair dealing defence apply to unauthorised Baby Yoda GIF postings in Australia? The legal treatment of GIFs may be compared to a case involving an older technology, where a press-clipping service was found to have infringed copyright by sending a photocopied newspaper article to subscribers. The press-clipping service failed to demonstrate how its business activity provided criticism or review, as it merely aggregated and distributed articles for subscribers, without any form of evaluation. 

With respect of the published Baby Yoda article (which sparked the above-mentioned controversy) the author discusses Baby Yoda’s mysterious qualities using GIFs to illustrate their opinion. We believe it would therefore qualify as a review of the copyrighted work. It is important to remember though, that fair dealing is only an infringement defence and not a licence for individuals to do whatever they choose with the copyright work. 

If you have any further questions or require expert advice, please don't hesitate to contact us

Authors: 

Sheree Hollender

Matthew Keevers

 

Our Expert Project Lead