I was not surprised to see Twitter suspend the Deadspin and SBNation accounts last month over their use of GIFs that showed NFL highlights. With ESPN allocating much of its annual $1.9 billion NFL payment to the use of highlights, I expected the networks and leagues to force Twitter to take an action like that.
That said, I was quite surprised to see both accounts reactivated within a matter of days and continuing to post highlight GIFs. It seems that such an action devalues league highlight rights.
When I asked a panel of top industry executives about this at our Sports Media & Technology conference last month, it became obvious that all sides are unsure about what to do.
“We look at it all the time,” said Seth Bacon, senior vice president of media for MLS. “Clearly, if we sell highlight rights to a network, and another network puts those same highlights out, it cuts into the value of those highlight rights. That’s something we would take action on.”
As for the networks, its executives say the matter currently is in front of the lawyers.
“Everybody’s conflicted,” said Jamie Horowitz, president of Fox Sports National Networks. “The question is whether it’s really a highlight. A photo, you would be OK with, right? A highlight, you would not be OK with. The question is where on that spectrum does a GIF fall. No one up here knows for sure. We’ve been in contact about this, and we’re trying to figure it out.”
Twitter’s director of sports partnerships, Danny Keens, said that GIFs fall into a gray area of fair use rights.
“You get one lawyer on one side of the table and a lawyer on the other side, and they’ll argue it for hours,” he said. “If they’re legally allowed to do it, they can do it. If they’re treading over that line where they’re not, then we’ll take it down. We have that debate on a daily basis.”
— John Ourand
