IP P®OSPE©TIVE

A while back I had a few discussions with attorneys regarding whether you could copyright a tweet on Twitter. The discussion was sparked when it was announced that start-ups were trying to capitalize on Twitter by creating ways to monetize the 140-character “tweets” created by millions of users worldwide. This was inevitable, because when money is involved, property ownership becomes more important. If ownership of subject matter determines who gets paid a portion of any proceeds produced by that subject matter, of course people are going to fight over said ownership. Thus, you have the great Twitter copyright debate.
The debate was furthered when Mark Cuban posted on his blog a list of questions (directed to lawyers, no less) regarding the copyrightability of tweets.  The crux of this post reads as follows:

Here is a question for all you legal scholars out there. Is a tweet copyrightable ? Is a tweet copyrighted by default when its published ? Can there possibly be a fair use exception for something that is only 140 characters or less ?

I got to thinking about this when I tweeted about an NBA game. I tweeted to the people who follow me. While I never asked that they not distribute it to other tweeters, i did not give anyone permission to republish my tweets in a commercial newspaper, magazine or website.

So when an ESPN.com or any other outlet republishes a tweet, have they violated copyright law ?

I began the discussion on IP Prospective as a response to Broken Symmetry’s analysis of Cuban’s queries.  However, I have just now been directed to an article authored by Brock Shinen at canyoucopyrightatweet.com.  Shinen is an intellectual property and entertainment lawyer in Fullerton, California (a few miles from where I attended law school at Chapman University School of Law).  Shinen’s article is a fantastic overview of copyright law and its application to Twitter and other internet bodies comprised of “social-networking” information and “ideas”.  I encourage you to read the article for an entertaining assessment of copyright law and its applicability to Twitter and other such mediums.  For now, I will leave you with an excerpt from the article that I found extremely insightful (because I agree with it):

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.

 . . . 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.

 Lastly, Shinen concludes with a very appropriate assessment of the copyrightability of tweets.  The answer is that tweets are not, and will not, be copyrightable across the board just because they are tweets.  In other words, no court is going to determine that tweets, in general, are copyrightable.  Instead, it will completely depend on the substance of that tweet, and the originality in the expression of that tweet.  Shinen hits it dead on:

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 encourage all IP Prospective readers to read the full article by Brock Shinen: Twitterlogical: The Misunderstandings of Ownership.