After Wednesday night’s CNN town hall on the massacre at Marjory Stoneman Douglas High School in Parkland, Florida, the NRA was feeling a little defensive. In response to the heavy opposition the gun lobby received at the televised event, it turned to GIFs. @NRA tweeted out praise for its spokesperson Dana Loesch, who confronted an angry crowd that booed her as she deflected questions about gun control. That tweet used a GIF from the television show Parks and Recreation in which Amy Pohler’s character, Leslie Knope, approvingly says, “Thank you.”
The tweet didn’t go over well with the creator of Parks and Recreation, Michael Schur, who goes by @KenTremendous on Twitter.
“Hi, please take this down. I would prefer you not use a GIF from a show I worked on to promote your pro-slaughter agenda,” he wrote. “Also, Amy isn’t on twitter, but she texted me a message: ‘Can you tweet the NRA for me and tell them I said fuck off?’ ” That tweet has since been shared almost 97,000 times as of Thursday afternoon. Meanwhile, the NRA’s tweet, which is still up, has been shared just over 1,800 times.
It doesn’t appear that anyone has threatened the NRA with copyright infringement for using the GIF. But it’s worth asking the question: Could Schur and Poehler actually do anything to stop the NRA from using the GIF?
Probably not legally, anyway. It would be difficult to legally compel the NRA to take the tweet down. That’s because, according to Tiffany Li, a fellow at Yale Law School’s Information Society Project studying intellectual property issues, “when I look at the use of this GIF, I think it’s pretty clear that there’s no copyright infringement. It’s fair use.”
“Fair use” refers to the idea that sometimes, even if a work is copyrighted, people are still allowed to make a copy of all or part of the material without getting explicit permission. It’s not always easy to tell, though, if something is fair use. That’s why copyright filtering and detection technology—used by sites like YouTube, for instance—takes down non-infringing uses and why cases of artists sampling copyrighted material may end up in court.
When determining whether a use of copyrighted material is fair use, courts usually look at four factors: the purpose of the use of the material in question, how much of the work is used, the nature of the original work (like whether it’s fictional or nonfictional), and finally, whether the use of the material will impact the commercial viability of the original piece.
The NRA isn’t commenting on the Parks & Rec GIF for educational purposes. But the organization is a nonprofit and the use of the GIF is noncommercial, which Li explains helps to protect the gun lobbying group against any potential copyright claims. Moreover, it’s only a two-second, low-resolution clip with no sound, and it’s used in a way that is unlikely to affect the commercial viability of Parks & Rec—or it would at least be hard to prove that it did. The courts usually look at whether the new use can be a replacement for the original work. “Obviously, no one is going to watch the GIF instead of Parks and Recreation here,” Li said. One thing the NRA has going against it is that the original work is fictional, and it’s easier to claim a copyright is being violated with original stories than with nonfiction. Still, the four-factor test for fair use is a balancing act, said Li. When everything is considered in this case, it’s probably legally fine for the NRA to use the GIF with a clip from Parks and Recreation, even if it might break Leslie Knope’s fictional heart.
If it wasn’t OK to do so, a company like Giphy probably wouldn’t be able to exist, since the website’s whole platform is based on the idea that the GIFs it hosts are probably fair to use. If there were a court case where GIFs were deemed to, in general, not be fair use, Giphy would probably have to get everything licensed or else close shop altogether.