At what point is uploading a movie with heavy compression not copyright infringement?

Question

My friend recently linked me a GIF of the entire Shrek movie in 60x60 resolution. At the time of writing this, it has 12 million views on imgur. This got me thinking, could a copyright holder technically sue over the uploading of this GIF? I'm guessing yes, because it's still barely legible. But at what point are they not allowed to do so? Surely they can't claim intellectual property over one pixel shifting to specific colors for 90 minutes, for example? How about 2x2? Etc.

I read What considerations determine copyright infringement? which to me makes it seem like they COULD sue over the one pixel shifting colors for 90 minutes, because I did copy and modify the movie. Is that really true?

I also read How similar should a tune be to constitute theft of someone else's tune? which states that it depends a lot on the case since there are so many variables. Is that also true in this case? I imagine songs work very different from movies.

Looking for both US or EU answers.

Answer 1

A few years ago, there was a trial in the USA about some short sound on some music CD:

One party claimed that one piece of music on the CD contained a sound of less than one second length which is copied from another CD without the permission of the copyright owner of the other CD.

It could never be found out if this claim was really true.

The court's decision was:

If it is not possible to distinguish between a copy and a work that does not depend on the other work at all, it is not a copyright infringement - even if the sound has been copied from the other CD.

For this reason, I'd guess that a 4x3 image would not be a copyright infringement, yet, while 60x45 would definitely be one.

Just for reference: The same image as 3x4 and as 45x60:

Answer 2

Even squeezed down to a single pixel, the animation would still technically be a derivative of the original movie. However, using the movie in such a radically transformative manner would almost certainly be considered fair use (or equivalent in other jurisdictions) and thus not actually infringing on the movie's copyright.

In particular, in the united-states, 17 U.S. Code § 107 defines fair use and sets out the four main criteria to be considered when determining whether a use of a copyrighted work is fair:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Let us consider the hypothetical 1x1 pixel animated GIF version of the Shrek movie — or the less hypothetical movie barcodes mentioned in the comments — with respect to these criteria (and the additional guidance provided by the U.S. Copyright Office regarding them):

1. Purpose and character of use: Squeezing a movie down to a single blinking pixel is highly transformative and, as such, more likely to be considered fair:

   Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

   While in a purely mechanical sense downscaling the video to a single pixel (and removing the audio entirely) adds no new information, the idea of transforming a movie in such a way could certainly be considered something new and creative, and the resulting original work of visual art is certainly substantially different in purpose and character from the movie and cannot possibly substitute for it. Indeed, it is unlikely that a typical person viewing the single animated pixel without additional explanation could even recognize it as being based on a movie, or what movie it was based on.

2. Nature of the copyrighted work: This factor does not particularly weigh in favor of fair use, as the copyrighted work in this case is a creative work of fiction and visual art rather than, say, a technical manual or a news report.

3. Amount and substantiality of the portion used: While the entire duration of the movie is used, each frame of the movie is transformed and reduced to a vanishingly small fraction of its size and image content (less than one millionth, assuming the original was in full HD resolution) in a manner that does not permit reconstruction of any recognizable portion of the original movie. Furthermore, the audio part of the movie is omitted entirely.

4. Effect upon potential market or value: As already noted in the analysis for the first factor above, a blinking pixel cannot possibly be a market substitute for an animated feature film. Thus, this factor weighs heavily in favor of fair use.

With three out of the four points weighing strongly in favor of fair use, it seems likely that at least the 1x1 pixel version of the movie would be found sufficiently transformative and distinct from the original to be considered fair use. And the same would likely be true of, say, a 2x3 pixel version too, or indeed any version with so few pixels that no recognizable image can be seen in them.

---

What about the 60x60 pixel version mentioned in your question, then? Here, we're getting into somewhat murkier territory.

For one thing, now the original movie is clearly recognizable from the downscaled version. Indeed, it could be argued that the downscaled animation — even with just 60x60 pixels and no sound — remains marginally viewable as a movie, and thus could in some sense substitute for the original movie. Whether anyone would actually want to watch a 90 minute 60x60 pixel GIF animation, even for free, instead of proper movie is certainly doubtful. But one could conceivably come up with some imaginary situation where someone might view the two as potential substitutes.

Furthermore, the very fact that the movie is recognizable from the animation somewhat makes the transformativity argument slightly weaker, or at least not quite as obvious: a single blinking pixel is obviously not a movie, but a low-resolution silent movie still is a movie, even if not a very good one. And, whereas one could easily argue that transforming a movie into a single blinking light is an act of artistic expression that creates a completely new viewing experience entirely unlike watching the movie in a normal way, it seems a bit harder to make that same claim about a "thumbnail" version where the characters and events of the original movie are still perceptible, however crudely.

That said, if the matter were to come before a court, it certainly seems possible that a competent lawyer could successfully argue in favor of even the 60x60 pixel version being fair use. But it also seems possible to me that such an argument might not succeed. And, in practice, a lot could depend on the specific context, manner and purpose for which the downscaled version was exhibited and/or distributed.

(For example, as noted in the comments below, thumbnailing images for preview, in the context of an otherwise legitimate index providing legal access to the original images via hyperlinks, has been held to be fair use in several cases, such as Kelly v. Arriba Soft and Perfect 10 v. Google. Yet it's also obvious that merely scaling down the resolution of an image or a video somewhat does not automatically make an otherwise infringing use fair, e.g. if the intent is to provide a free pirate substitute for the commercially sold original work.)

---

And, of course, for other jurisdictions all bets are off again. While, in general, sufficient transformation of the original work — at least, as noted in Martin Rosenau's answer, to the point where it's impossible to determine whether copying actually occurred or not — should be a defense against copyright infringement everywhere, the specific manner in which this is codified into law and precedent varies a lot between jurisdictions, as consequently does the threshold of what is considered transformative enough.

Answer 3

At no point is it not copyright infringement. What is protected is the "expression", and not the physical characteristics of that expression. Thus a Harry Potter novel produced on a typewriter by an author is protected, and remains protected if someone turns it into a PNG file, and likewise an OCR's version created from that, which that is turned into a Word 93 document, and then later an ODT file (we can then print it, re-scan and so on).

Clearly, somebody copied. Copyright means "the right to make copies", and clearly making unauthorized copies is an infringement on that right. Copyright does not mean "the right to make exactly identical copies using the same technology.

Answer 4

This got me thinking, could a copyright holder technically sue over the uploading of this GIF?

Technically, a copyright holder could sue over uploading a GIF that is completely unrelated to their copyrighted work :).

So I assume you are actually talking about at what point the lawsuit might actually have some level of merit. Maybe asking if it could survive a summary judgement motion? Or simply avoid sanctions for being frivolous?

I'm afraid there is no clear answer. Copyright protects expression. Actual copying or transformation of a protected work is nearly universally recognized as a copy, and therefore would be infringing if unauthorized. In the U.S. there are defenses for fair use. Software companies sometimes use a process of 'black box' re-implementation of software where one team has access to software and creates a specification that another team can follow to create software that does the same thing, and can show that the second team has no communication with the first team or access to the original software so they aren't 'copying', although the resulting software does the same thing.

In your '1-pixel' example, that ends up being about 130,000 pixels over the course of a 90 minute movie, enough for a 360x360 image. The problem is though that you are admitting that you are copying. The only thing that makes your GIF special is that fact that it has another work as the source. While there is some ingenuity in the idea of taking a single pixel from each frame of a movie, the actual expression of your idea is in fact simply a copy. The same method could be done with any of thousands of movies and the only differentiation would be the source material. That's something like coming up with a new medium for art such as oil painting, but the method of creation is not copyrightable, only the expression used in creation.

You could argue the defense of fair use, arguing that the use was de minimis, but the fact that you had no original creative expression would probably preclude that.

Answer 5

As others have stated above, there is no point that creating a single pixel-sized animated gif is not a derivative work. So, prima facie it is a copyright infringement.

In UK law the test of infringement is whether a substantial portion of the original work is contained in the alleged derivative work. This is not a quantitive test per se, it is more of a qualitative test. For example, it is arguable that an infringement can occur where the “idea” has been taken, rather than some identifiable part of a work (see “Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1”, discussion here: https://www.copyrightuser.org/educate/the-game-is-on/episode-1-case-file-1/).

Arguably this crosses the line in the idea-expression dichotomy, but it has not been overturned.

The USA doctrine of “fair use” does not exist in the UK, its somewhat equivalent is “fair dealing”, which allows some copying for certain purposes. Principally, this amounts to review, where you would be able to show the Red Bus photo(s), in order to show/describe the differences between them, or perhaps a short excerpt from a film by way of a review.

The proposed use does not appear to fall into the fair dealing defence. However, you may be able to develop a novel argument that indicates a single pixel gif of “Shrek” is a form of review (“Look how powerful this expression is, it still survives down to a single pixel”).

I am not indicating that such an argument would be successful.

There is no doctrine of transformation in UK law. In fact, the opposite is the case, in the sense that there is specific legislation that says, for example, that creating a 2D version of a 3D work, or vice versa, is an infringement.

I believe that the case is that same across the EU, which is moving in the direction that the protected element of copyright is the product of the author’s mind. This tends to imply that copying, with whatever transformation you like, will always amount to an infringement.

The outsider’s view, looking at the USA’s doctrine of transformation (and fair use, for that matter), is that it tends to eviscerate copyright.

Whether an author/rights holder would ever take legal action over a 1*1 pixel gif is another matter.