Twitterlogical: The Misunderstandings of Ownershipby Brock Shine, canyoucopyrightatweet.com
March 29th 2009
I’m all for people being passionate about what they believe. That’s true even if I disagree. But, there’s a point where you have to ask yourself if you have the proper basis for your belief. Our systems of thought all flow from somewhere, but we really should step back and evaluate the basis of our passion a bit more objectively.
This is especially true with the Internet. Clearly, many people believe that everything we do, everything we post, everything we think in the online world is somehow protected. I suppose it makes sense if you are the one doing, posting, or thinking, but it’s not realistic. Since when did the online world cease to function in reality? Simply because people break the law online doesn’t mean there is no law- or worse yet, there is a different law for the Internet. The laws that exist in the offline world exist online as well – objectively.
My interest was raised when a great friend of mine pointed me to a blog post on Mark Cuban’s blog (). The question was quite simple: Are Tweets Copyrighted? I quickly jumped in, throwing in a sentence or two about the danger of that way of thinking. What startled me was the high level of participation and the supposed consensus that Tweets are, in fact, copyrightable and copyrighted. That’s why I’m writing this article.
To understand why the basic assumption is incorrect, you need background. I’ll do my best to set the record straight on what the law is – in theory (since it hasn’t been effectively tested) – and why it should be the way it is. Wherever you land, you’ll certainly know where I stand on this issue. First, let’s debunk some threshold confusion.
Twitter Doesn’t Own my Tweets, So I must
Twitter’s “Terms of Service” state unequivocally that when it comes to copyright, “What’s Yours is Yours.” (http://twitter.com/tos). The ‘terms’ go on to state that “your [the Twitter account owner] profile and materials remain yours.” This is likely the first stage of misconstruction in Twitterlogical thinking, i.e., that simply because Twitter doesn’t make a claim in your “intellectual property,” that there actually exists some intellectual property to own. Twitter did, after all, use those words – intellectual property/copyright. [Note: Granted, there are photos used and possibly other materials that may have copyright protection, but what I’m talking about here in this article is strictly limited to the <140>
Twitter (and Facebook, Myspace, etc.,) are not capable of modifying copyright law to create a property right that does not otherwise exist. If the material you post through Twitter isn’t copyrightable to begin with, it will not mystically transform into protectable property merely by being Tweeted. Copyright law is codified in the United States Copyright Act, as implemented/construed/constructed by the Courts. If you’re not a judge or a lawmaker, you can’t create law. You might be able to try and create law by virtue of a contractual relationship, but it won’t change copyright law. My point here is that Twitter can’t tell you whether or not you create or own a copyright – it doesn’t have the legal ability to do so. So if you own any copyrights, it’s not because of Twitter not owning them, it’s because the law provides for ownership of them which initially vests with you, the author.
Fair Use Doesn’t Come Into Play If the
Material Isn’t Copyrightable and Copyrighted
When skipping along through the mountains of materials you find online, you’re certain to find heady discussions of Fair Use. If the word “copyright” comes up and anyone starts talking about what you can or can’t do, you’ll find someone in the crowd who will blow the Fair Use horn. In many instances, it makes sense. Fair Use is a major player in copyright- both on- and offline. But it’s a red herring if you are not dealing with material that is: 1) copyrightable; and 2) copyrighted. As to the former, we’ll get to that. As to the latter, some things are copyrightable (say, for instance, a song), but no longer protected by copyright (i.e., in the public domain). Fair Use doesn’t impact something in the public domain, because it’s no longer protected by copyright and may be used regardless of Fair Use. Being copyrightable, however, is the bigger question. I noticed lengthy analysis of the Fair Use doctrine on Mark Cuban’s blog, but again, if we’re not dealing with copyrightable materials, the analysis doesn’t matter.
A Quick Read of Sections 101 and 102
of the Copyright Act Is Not Enough
What I often find is that people online seek to educate themselves. They read; they investigate. This is true with copyright issues as well, and it’s well documented that many people are not only familiar with the US Copyright Act, but have read parts of it. The truth, however, is that reading the applicable sections isn’t enough. If you can imagine, judges don’t always agree on what the statutes mean, so when a layperson- someone without extensive legal background in the area of copyright law – tries to interpret a part of the Copyright Act, there’s a high probability that it will be interpreted incorrectly. Even if a person is correct in an assumption, it doesn’t mean everyone else has interpreted the law in the same way. In addition, the Copyright Act doesn’t explain anything; it just states the law, which makes it very difficult to understand the underlying motivation in a particular section.
To understand copyright law, you need to know that the Copyright Act is only the beginning. Courts interpret the Act; they apply it to real-life situations. This means that in order to understand why Tweets may not be protected by copyright, you need to know cases as well. We also have areas of copyright law that haven’t been fully explored in the courts, like the Religious Exemption in Section 110, or even the Fair Use Doctrine, which has a mountain of case law and a higher mountain of misunderstanding of its application. What’s my point? Just that here’s much more to understanding a copyright issue that what you’ll be able to discern online. Case in point: I couldn’t tell you if Perl is the best tool for a particular scenario, but I did read the Wikipedia article on it, and discovered that it’s apparently the Swiss Army chainsaw of programming languages. Quiz me on a few more things about Perl and I might be able to answer correctly. Do I really know anything about it? No, but I do have access to Cliff Notes versions of real information. That’s a dangerous way to become an expert on anything.
Does the US Constitution Say Anything About this Topic?
Article 1, Clause 8, Section 8, of the United States Constitution states that: “The Congress shall have Power [. . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” You might not believe it, but this tells us a lot about why Tweets may not be protectable by copyright law. It’s about reasoning- why do we have copyright law to begin with? That question is answered simply that there was a belief that if creators were not able to own and exploit (for a limited time) materials they created, they would not be able to continue to create them (because they would be forced to find other means of financial survival), and that the progress of arts and sciences would be stifled because no one would have incentive to create. This Copyright Clause of the US Constitute made it clear that creators needed incentive to create.
Arguably (and I’m not sure I entirely agree with this argument I’m making), Tweets do not even comport with the Copyright Clause of the US Constitution because they are often social/ego driven and would be created even if there was absolutely no benefit to the arts and sciences (and the financial potential arising therefrom). In other words, it is not copyright protection that provides incentive to Tweeters to Tweet; it is something else. For that reason, one might reasonably argue that Tweets do not fit the underlying logic of the Copyright Clause which gave rise to the Copyright Act. Tweets would occur naturally regardless. This is a slippery slope, though, and Tweets may very well fit the purpose of the Copyright Clause. For that reason, I think it’s worthwhile to point out that many Tweets have no logical tie to copyright protection, but that we can’t rely solely on the US Constitution for guidance.
All Tweets Are Not Created Equal
Tweets range from boring and useless facts (e.g., “wow, it’s cold in Toledo,” “my plane is late again,” “I’m going to poison the neighbor’s dog”) to purportedly-funny, yet useless facts (e.g., “I woke up and farted,” “she must workout,”), to interesting facts (e.g., “Americans consume 1.7 billion pounds of lard every year,” “the average burp contains 1.6 liters of gas”), to references to other facts (e.g., “check out this article in New York Post: tinyurld.com/183*&%,” “Michael Jackson auction canceled: whocares.com”), and everything in between. For this reason, to truly analyze the question of whether Tweets are copyrightable, you must differentiate between types of tweets. There may be a lurking Tweet that is protected by copyright law, but once you finish reading, I think you’ll see the probability of that scenario as being close to or at zero.
Facts Are Not Copyrightable
I’m not going to waste my time citing references to cases. You haven’t retained me as a lawyer and I haven’t agreed to represent you. More importantly, I haven’t received your retainer check. For that reason, you’re either going to have to assume it’s true, or you’re going to have to research it yourself. I’m just going to say what’s what.
“It’s sunny and warm, with a high temperature of 80 today.” That’s a fact. You think I can get dibs on keeping you from writing the same thing? No. Copyright law doesn’t extend to facts, no matter how they are described. [Note: for you ‘scholars’- I’m not saying there isn’t a way to protect a collection of facts and/or the particular expressive elements of the recitation of facts, I’m speaking directly to the facts themselves.] Now take my example and read the last 100 Tweets you can: how many are nothing more than a simple recitation of fact? Sure, there might be a funny word or two thrown in for good measure, but when you do the math- what, 90%? Be honest.
“Barstow’s Desert Dispatch Blasts City Manager for Living Outside of Barstow: tinyurl.com/1B30*%.” Did you grab the title from the newspaper? Well lucky you- that issue is in the courts right now. Newspapers will lose that battle, since titles are not protectable. But what if you made yours up? Well, yours is a title too. You have the same problem as the media giants, except you’re probably not as financially endowed, so you won’t be swaying any judges to make your point.
“She’s got legs and she just got done using them…not bad for a granny.” (Let’s assume this is a fact- a scary one at that.) Well, a fact is a fact. It might be funny or not, but it is, nevertheless a fact. Now this plays into how you might express a particular fact (we’ll get to that in a second), but be clear: facts are not protected.
The long and short of it is this: if 90% of all Tweets are nothing more than recitation of facts. That means that about 90% of Tweets are not protectable. For the other 10%, we’re not done with you yet. It’s all in how those facts are stated.
Idea versus Expression
“It’s sunny and warm, with a high temperature of 80 today.” A safe and conservative reporting of today’s weather. “It’s hot like a mother and the sun is beating me like a stepchild.” Same idea, different expression. Copyright law won’t keep someone from writing about the same fact. In my examples, both talk about the weather in my locale. But they each take a different approach to the same idea (fact). This is a pivotal connection you must make- you can only potentially protect your particular expression of a fact; you can’t keep other people from writing about the same facts.
But at some point – and this is a snag for nearly every posting junkie – the idea and the expression merge. “That’s a big door,” “that’s a large door,” “that’s a gigantic door,” “that door is massive,” “the door is huge” – these are all examples of facts that have merged with the expression of them. There are only so many ways you can describe a particular scenario, and copyright law isn’t going to let you get a monopoly on one way if there aren’t too many other ways to say the same thing. This does away with another 5-7% of the roughly 10% of potentially protectable Tweets.
Think about the Civil War. You can probably find 1,000 or more books on the subject. They all talk about the war, or we assume they do. Why do those books get copyright protection? Assuming they do, it’s because the expression can be individualized to such an extent that the expression rises above the facts. But could you have 1,000 books on me walking from my garage to my car door? Probably not. Not because it’s not possible, but because no one has done (or will take the time to do) it in a way that would be protectable. People would be saying basically the same thing. For most authors (Tweeters included), we write things in a way that is common, or in a way that 100 other people might respond to the same scenario, with little variation.
That leads us to the next reason why most Tweets would never be protectable: Scenes a Faire. These are scenes that necessarily result from a given situation. We all think we’re witty geniuses when we Tweet, but chances are if there were 100 Tweeters standing next to us at the time we experienced whatever it was we experienced, they would Tweet the same thing we did (or close enough to it). This includes common colloquialisms and expressions. Maybe we’re not as witty as we think when everyone else would use the same or substantially same expression. Some things just come up because of circumstances, and not because of creativity.
Copyright Protection Requires Originality
and Originality Requires Creativity
The most common example I’ve seen on Twitter of individuality of Tweets is the infusion of wit. It should be crystal clear by this point that the mere recitation of a fact is never protectable. The more difficult question is how to deal with wit. At the outset, understand that copyright law will not protect an unoriginal Tweet. We’ve already touched on that, but I know you’re all thinking, “yeah, but I’m funny as hell and so are my Tweets.” Maybe, maybe not, but copyright protection doesn’t have anything to do with humor. Originality is not dependent on it. But the real question requires legal interpretation. Originality in the copyright context is not necessarily what most people would think. Instead, it’s a certain qualitative and quantity analysis that requires a technical understanding of the legal distinction. In most cases, Tweets are not original. The humor added to a fact doesn’t make it original; it only makes it a potentially interesting read.
Over the years, I’ve heard so many conversations about size and length (in the copyright context). “You can use 10% of a book or song without permission, but no more,” “thirty second samples don’t require a license”). These supposed guidelines may generally be false. It’s interesting, because even large trade groups and professional organizations promote the thinking. In reality, most instances of copyright use and copyright protection involve an analysis of length. Since we’re talking about Tweets, we’re going to talk about the length of the Tweet and whether it is protectable in that context.
Titles are not protected by copyright protection. Neither are slogans and short phrases. Why? Because they tend to identify something (as in the case of titles), which renders them factual, even if witty. Also, because the length contributes to an overall belief that they lack legal originality under copyright law, short sentences, phrases, etc., often do not rise to the level of protectability. This is not to say that copyright law will never protect a short statement; rather, it is an issue of likelihood.
The Monopoly of Language
Think about it. If you could prevent someone from saying “Happy Birthday to you, Happy Birthday to you, Happy Birthday dear ____, Happy Birthday to you,” you would be pretty stoked, wouldn’t you? But what do you think the rest of civilization would think – utter contempt (ever wonder why the employees at restaurants won’t sing the standard Happy Birthday song to you?). To be sure, many courts have arrived at disastrous conclusions, whether as a result of political or financial pressure, or due to inadequacy of legal persuasiveness. But a key to copyright protection is the granting of a monopoly. That’s why the law is going to take very seriously any request to protect an arrangement of words. When copyright law protects the written word, it grants a limited monopoly over the arrangement of words, allowing the owner to prohibit others from writing the same thing in the same way.
Now imagine if a court had to evaluate Tweets and consider whether to grant a monopoly to the author of a Tweet. Don’t you find it hard to believe that a court would grant someone a monopoly over your average Tweet? No, seriously, think about it. “Is this really the happiest place on earth? Why are so many people crying?” That was a real-life Tweet from me while at Disneyland. Do I want the courts to keep other people from writing the same thing? Of course not! Should I be able to sue someone from Tweeting the exact same thing? Of course not! You give a monopoly over language to true original authorship, not to a couple of sentences about Disneyland, your dog, coffee or the woman in the elevator with you.
The Problem of Registration
Know what it takes to stop someone from repeating your Tweet? A good lawyer and copyright registration. Some might say it just takes money, but money just hires lawyers; it doesn’t do anything on its own. But let’s just say you believe you own your Tweet and you want to stop someone from repeating it. How would you do it? What could you possibly do?
As the Mark Cuban blog commentators pointed out, copyright subsists in copyrightable subject matter from the moment it’s fixed in a tangible medium of expression. Yes, that’s true, but what can you do with that? Can you sue someone? No, but if you try, the judge will quickly inform you that a copyright infringement lawsuit requires copyright registration. So back up a few steps and consider that even though you may believe you own a Tweet, you can’t do anything practical about it unless you seek copyright registration. Without being condescending- Good luck with that.
Is there a protectable Tweet?
I admit, I think a protectable Tweet exists in theory. I have read hundreds if not thousands of Tweets and have yet to read one I believe would be protectable, but the possibility exists. The question is not: Are Tweets Copyrightable. The question is: Is This Tweet Copyrightable. The copyrightability of Tweets is not dependent on the fact that they are Tweets. Rather, it’s dependent on the analysis of the Tweet in question. The all-encompassing response that all Tweets are either protected or not protected is misguided. The real response is that it depends. However, when you analyze most Tweets, they would never individually pass copyright muster.
I read an interesting post in the thread I’ve discussed throughout this article, and the post mentioned a Haiku. To me, that’s smart thinking. Finding a possible protectable Tweet among the hordes of non-possibility. Maybe a Haiku is your ticket to Tweet monopolization. Otherwise, you probably won’t be able to protect anything.
The Parting Shot
Copyright and Tweets is really about practicality. Many people believe they own everything they post online, be it Tweets, Facebook status, or whatever. The truth is that most people are most likely incorrect in their assumption. I guess the bigger question is what would you do even if you did own a Tweet?
Brock Shinen is a business, intellectual property and entertainment attorney. He works extensively in the field of copyrights, and is a published writer and speaker on the subject matter. If you have questions about this article, or want permission to reprint it, please contact him at the address listed below.
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