In 2017, NRG Stadium in Houston hosted more than 70,000 football fans for Super Bowl LI. To do our part in supporting the event, we considered the legality of creating and sharing GIFs that feature NFL footage. In recognition of this year’s big game, Super Bowl LIII, which kicks off in Atlanta at 5:30 pm (CST) on Sunday, February 3, we are revisiting the topic of using NFL clips to create and share GIFs on social media. Many fans will capture game video with the hopes of turning a fantastic play or a memorable touchdown celebration into a GIF for all the world to see on Facebook, Twitter, and Tumblr. For its part, the NFL strongly discourages the use of its images, so for those of you hoping to create the next viral meme, let the law be your guide.
The NFL is notoriously protective of its brand. All text, images, photographs, video, audio, and graphics are tightly controlled, and any use of the NFL's content must comply with the NFL.com Terms and Conditions Agreement. Nonetheless, ripping images or video from television broadcasts is a popular way to create the GIFs and other graphic memes that fill our news feeds, and football replays are some of the most widely shared.
When news outlets use GIFs to enhance a story, they often rely on the fair use defense, but legal experts question the plausibility of such claims. Ricardo Bilton, Staff Writer at Digiday.com, describes the legal murkiness of sports highlight GIFs, saying that fair use may not apply. When publishers rip video highlights and repost them unaltered online, those content providers reap the benefits of increased ad revenue. However, as the popular websites, Deadspin and SB Nation, found out, fair use has its limits, and legislation such as the Digital Millennium Copyright Act can be invoked to support claims of copyright infringement.
Those who appropriate content without paying the rebroadcasting fees that sports leagues, including the NFL, typically require must be careful. As long as the new content is "derivative of the original and does not create economic competition for copyright holders," the NFL will evaluate it on a case-by-case basis.
As for the armchair quarterback and amateur image manipulator, the same rules apply. Remixing and repurposing content to parody or critique your favorite plays of the game seems to follow the spirit of fair use. Unless the NFL sends you a takedown notice, your GIF of the game-winning catch, modified for new utility and meaning with no intent to profit, is probably safe.
But what about using the official name of the Big Game to advertise an event, for example? The Electronic Frontier Foundation has considered this very question, saying that, in their estimation, the terms “Super Bowl” and “Super Sunday” can be used to promote game day parties. Specifically, they mention the “nominative fair use” of trademarks:
“Having a trademark means being able to make sure no one can slap the name of your product onto theirs and confuse buyers into thinking they’re getting the real thing. It also means stopping an instance where using the name might make someone think it’s an endorsement or sponsorship. If neither of those things happens, you can call the Super Bowl the Super Bowl. The ability to use something’s trademarked name to identify it—even in a commercial—is called “nominative fair use.” Because the trademark is its name.”
The takeaways, according to those who have explored this topic (See links throughout this blog post.), are the following: Calling your Super Sunday celebration what it really is – a Super Bowl Party, not just a Big Game Party -- is probably okay. And hitting record on your DVR to capture all the best plays for your own fair use GIF is likely to be okay as well. May your Super Bowl Party be a day to remember, may the best GIFs go viral, and may the best team win!
