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In Android and iOS there are "GIF Keyboard" apps. Here's an example. These apps give their users the ability to search for and send a wide variety of GIFs to other people through messaging apps, such as Messenger or Google Hangouts.

In the context of these apps, a GIF is a short - usually one second at most - video clip. Much of the time, these GIFs originate from TV shows.

I'm creating my own GIF keyboard app (for Android, it will be released on the Google Play Store) that will, for the most part, be similar to these other GIF keyboard apps. By similar, I mean that my app will also allow the user to search for and send GIFs to other people through messaging apps.

The only differences are that

1] My app will only allow the user to search for GIFs that are found in anime (Japanese film and television animation)

and

2] The user will also be allowed to search and send static images from anime to other people through messaging apps.

I am relatively confident that this app will not violate any sort of fair use law or copyright law because many other GIF keyboard apps already exist on the app store.

However, I just wanted to make sure that the chance of anyone taking legal action against me for releasing this potential app is very low.

As a sidenote - I have found these posts that seem to relate to the question of fair use and videoclips, but I wasn't entirely confident if my app would be legal based off of the information provided in these posts.

Length of movie clip for fair-use?

Is a video demonstrating a small portion of a movie sync fair use?

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    How are you sure that those other keyboards don't violate copyright? "They did it /too/first/more!" will not protect you in litigation. – Nij May 12 '18 at 1:28
  • I'm not absolutely sure - but none of these other GIF keyboard apps have been removed by Google Play and major companies, like Facebook, have integrated these types of keyboards into their own apps, so I'm guessing that it is not illegal. – Roymunson May 12 '18 at 1:49
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Under US law your proposed use would be considered copyright infringement of the film/TV copyrights unless it is considered "fair use." The evaluation for "fair use" defense can only be done by a Federal Court judge as part of a lawsuit. The judge will evaluate the fair use defense using a four part test that evaluates:

(1) the purpose and character of your use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use upon the potential market.

This is a very fact specific inquiry, so it isn't amenable to easy yes or no answers. However, based on your description your use wouldn't be very transformative under step (1) since you are using frames from the movie unchanged, and you are using it for commercial purposes as opposed to criticism/commentary/education. Nor does step (2) seem to favor you since the anime films are not heavily based in facts that you would be reusing/publishing. Step (3) would likely favor you since the amount of material taken is very small (1 second) compared to the work as a whole. Likewise, step (4) would also likely favor you since your use is unlikely to impact the commercial market for the original film/tv show. If you intend to rely on the "fair use" defense, then you should definitely hire an attorney who can give you an individualized opinion rather than the generalities I've provided here.

As to other GIF users in the App Store, they may (1) have licensed the underlying content, (2) be blatantly infringing the copyrights for the content and hoping not to get caught, (3) relying on fair use (see above), and/or (4) claim DMCA safe harbor as a message board so long as user are the ones uploading the GIF content.

  • This reads mostly correct to me. (I recall there was one case where a judge ruled that someone's use of an excerpt was not fair use because it was too short.) Though I'm not sure your analysis on point 4 is correct, since your final paragraph notes that other GIF users my have licensed the content in question from the original copyright holder, suggesting that there could be indeed a commercial market for the material. – jeffronicus May 23 '18 at 15:00

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