Just last week, a Wall Street Journal article announced a business plan to monetize the popularity of Twitter, which means people now have an incentive to own their tweets, or at least control them exclusively. The question of copyrightability in this context comes down to whether a tweet is copyrightable subject matter. To this end, Martin writes the following:
That depends. The Supreme Court dealt with the issue of eligible subject matter in Feist. The rule under Feist is that subject matter, to be eligible, must display a minimal amount of “originality.” Originality here means that the author had to make some creative choice about how to select, arrange, or produce the subject matter. For example, the phone numbers in the white pages of a phone book are not copyrightable. But the yellow pages that provide a particular selection and arrangement of phone numbers are.
See, Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 US 340 (1991).
The notion of originality is arbitrary, but its probably the best we have right now. It is leagues ahead of the “sweat of the brow” method, which holds no place in copyright law, or in IP law, except to assist in the calculation of damages (possibly).
The problem with quantifying, or even defining “originality” is that originality in intellectual property, and especially originality in copyright, is based largely on innovation, and not invention. Thus, original songs are based on new twists to old tunes. Original books are based on new twists to old themes. And so on. It is hard to draw the line between original and copying, when innovation from usable parts deserves to be considered an “original” new whole.
Martin must agree with me to some extent here, as he adds that
. . . at least before DMCA and the Supreme Court’s decision to ignore the plan meaning of the Constitution in Eldred [Amen], copyright law did a pretty good job making good neighbors out of authors and artists who are continually borrowing and rehashing each others’ work.
A recent New York district court’s upholding of the Hot News Claim for the Associated Press runs along these same lines. Is the reporting of news an idea with sufficient originality? The New York district court hasn’t answered this question quite yet, but it did uphold the Hot News claim against federal copyright law preemption. The AP’s argument, however, must pass the originality equation at some point.
A comment to the Broken Symmetry post asks whether extremely short subject matter (e.g., a few words) is excepted by a carve out from copyright law. As Martin states, this is trademark territory, but there was once a deminimis exception under copyright law, for which another Feist case is responsible. In Marks v. Leo Feist, Inc., 290 F. 959, 960 (2d Cir. 1923), the Second Circuit held that the taking of only six bars of music was not actionable for copyright infringement. While this doesn’t speak directly to the notion of copyrightable subject matter, implicitly it meant that the length of the subject matter impacted its protection under copyright law. The hard-and-fast rule was quickly struck down, and now its myth still lives on in songwriting circles today as a common misunderstanding that the taking of only six bars of music is safe. (Believe me, I worked in the music business in Nashville at one time, and songwriters still believe this is a rule.)
Transfering the focus back to Twitter, and tweets, the originality should be in the organization and portrayal of the otherwise unoriginal content that makes up a one-line tweet. If a person sees Michael Jordan at a restaurant and tweets about it, the fact that MJ is in the restaurant shouldn’t be copyrightable, but the selection or arrangement of the announcement (word placement, etc.) might be. But, then again, originality does not necessarily mean newly originated. I’m not convinced that tweets stating facts concerning whereabouts, etc., have enough originality. Then again, I can also see the other side, that tweets may also become unique expressions worthy of the originality stamp.