Copyright

Are My Tweets Copyrighted?

twitter and copyright

Twitter; a bastion of free speech, extolling thought-provoking 140 character diatribes from some of our most famous cultural icons, including Kim Kardashian’s eloquent “Watching Cash Cab and these questions are so hard!”  to Paris Hilton’s “No, No, I didn’t go to England, I went to London,” has for better or worse, become one of social media’s most valued resources. And given the vast amount of retweets or articles that reprint them, it is an interesting question as to whether copyright protection is available for such short and mundane sentences. Well, that really depends on the tweet.  Lets look at some of the key factors the courts use when deciding on copyright.

 Copyright protection exists the moment it is created and fixed in a tangible form. But copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

Facts

Facts cannot be copyrighted, plain and simple. So, look back at the last 50 tweets you received.  I would bet that the majority are just plain facts. They either tell what a person is doing, where they are, a shout out to a friend, a link to a news story or maybe the are  just typical angry annoyances.  “I can’t believe my mothers making me take out the garbage I’m rich f—k this I’m going home I don’t need this s—t” @50cent.  50 cent’s quote is just a fact and therefore, despite its eloquence, does not rise to the level of copyright protection.  It says nothing more than the fact that his overbearing grandmother annoys him.  She is clearly evil.

 Idea vs. Expression

Copyright protects the “expression” of an idea, but not the idea itself. To grasp this, think about a Harry Potter novel.  The novels are copyrighted in their arrangement of words, or characters names and personalities.  But the idea of a boy wizard who attends a wizarding school, where he has magical adventures is an idea that is not something that can be protected.  Now, where ideas end and expression begins is a bit vague.

One Judge described it this way: “Obviously, no principle can be stated as to when an imitator has gone beyond copying the “idea,” and has borrowed its “expression.” Decisions must therefore inevitably be ad hoc.”  Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960).

With Twitter, we have only a maximum of 140 characters to express ourselves.  It is hard to move from idea to expression in such a short space; although it can be done.  It is just rare. You can assume that most tweets won’t rise to that level.

Originality and Creativity

In order for a statement to rise to the level for copyright, it must be original and have some creativity.  So any colloquialisms or common terminology can be ruled out.  Also, descriptions of scenes, despite how differently people might view them, would probably not rise to the level of originality in just 140 characters.  On the other hand, most originality and creativity in Tweets arrive in the form of witty banter.  Unfortunaltely, while humor may make tweets more interesting to the reader, it rarely gives rise  nto going to rise to the level necessary for protection.

One caveat though, may be jokes. Copyright in a joke can exist if it is sufficiently substantial to be considered a literary work.  It will really depending on the skill an labor that goes into its writing.  There have been several lawsuits recently, with comedians like Carlos Mencia and Jay Leno, fighting over stealing jokes, but whether a joke tweet has a copyright would need to be determined on a case-by-case basis.

Length

Titles, slogans and headlines are generally not protected by copyright mostly because there is an underlying idea that they are not long enough to be considered a literary work.  It stems from a belief that originality cannot be achieved in a small amount of words.  Twitter ‘;s 140 characters may be a bit longer but but most tweets are not much longer than most slogans.

One example of a short phrase which the courts rejected as having protection from the William Faulkner book, Requiem for a Nun.  The Faulkner estate sued Woody Allen for his use of the line in the movie Midnight in Paris.  In the novel, Faulker writes, “The past is never dead. It’s not even past.” In Midnight, the Owen Wilson’s character says: “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.” The case was dismissed.

Out of those last 50 tweets you were looking at, it is likely that almost none are copyrightable.  While there are tweets of profound thought and literary creativity that may rise to the level of copyright protection, that will be a rare case.  So, if you are intent on copying one of Kimye’s inspiring tweets, chances are you won’t be an infringer.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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