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Can Twitter Really Copyright Your Jokes?

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Social media website Twitter is all about the re-posting and re-blogging of content. An excellent resource for news outlets, bloggers, and freelance writers, Twitter allows you to build a fan base through your words. You can link to articles that interest you, post those articles that you actually wrote and published, or simply attract followers using pithy, 140-character sentences, or “tweets.”

But Twitter’s shareability has recently been making headlines as it comes to the surface that the social media giant is currently removing tweets based on copyright laws. It all started when Olga Lexell, a freelance writer from L.A., tweeted a joke to her base of followers. “Saw someone spilled their high-end juice cleanse all over the sidewalk and now I know god is on my side,” she wrote. It’s pretty witty, and let’s face it: coming up with Twitter jokes is not necessarily easy. Just ask the Twitter users that used the joke on their own platforms, without citing to Lexell by re-tweeting her own tweet (a re-tweet lets the Twitter user see who posted the original tweet). Those Twitter users appropriated Lexell’s joke as their own, and shared with their followers as if it was their intellectual property. Understandably, Lexell was not happy.

The writer filed a request with Twitter that the Tweets be removed, explaining that because she earns her living “writing jokes” and often uses “some of [my] tweets to test out jokes in any other writing” then those jokes are her intellectual property, and these users didn’t have the right to post without her permission.

Twitter promptly removed the offending tweets, and garnered rampant media attention for doing so. Those opposed to their actions thought it ludicrous that Twitter would consider a sentence to be copyrightable under law, while others argued the originality of the tweet constituted its protection. Whether Twitter’s use of copyright law to justify their actions in reasonable is a complex question, the answer to which likely lies somewhere in the middle of the contrasting arguments.

What is copyrightable on Twitter?

Twitter is a free social networking service that allows users to send and receive messages known as tweets via the Twitter site or a cell phone short message service (SMS). Tweets, limited in size to 140 characters, display on the author’s Twitter profile page, and are forwarded to “followers” – those who subscribe to receive messages from that person. The Twitter default is to allow open access to all for all messages, but authors can limit delivery to their circle of friends.

TwitterBecause tweets are so short, and so often predicated by facts or news items, it’s hard to determine whether tweets are in fact copyrightable. Twitter’s decision to take down the offending tweets reported by Lexell has spawned a lengthy debate regarding the “copyrightability” of tweets – is something as short and insignificant as a tweet worthy of copyright protection?

We’ve reviewed in our e-book what doesn’t constitute copyright protection, which includes facts, ideas not otherwise expressed, and titles, slogans, names, and headlines. At first instance, it would seem then that a tweet is not copyrightable, since it often includes facts, and even if it were a totally original thought, that thought might amount to a slogan or headline. After all, most people use tweets as a headline to draw attention to an article or other media they find relevant enough to share with their base of followers.

An article on WIPO Magazine sought to further define what’s copyrightable with respect to tweets specifically, reasoning that most tweets cannot be copyrighted because of size, content and scènes à faire issues.

Size, content, and scènes à faire

Often times, the length, or “size” of a creative product will weight heavily on whether its accorded copyright protection. For example, the estate of William Faulkner recently sued Woody Allen for using one of Faulkner’s most famous lines for his film, Midnight in Paris. The court found that the phrase – “the past is never dead” – concluded that the short phrase did not rise to the level of creativity required for copyright protection. Similarly, the 140-character limit to tweets makes it next to impossible for the work to reach the level of creativity required for copyright protection.

Similarly, content focuses on the actual meat of the post. Are you turning a clever phrase based on a piece of news or some well-established fact? Even if you’ve found some witty way to express what your thoughts are on ISIS, juice cleanses, or “the Donald” Trump, it doesn’t change the fact that you’re only adding to the conversation: You’re probably tweeting based on what’s “trending” or regarding something you’ve just read. And just like you have the ability to express your views on a fact, you can’t stop others from doing the same.twitter-white-house-fired-ftr--2

The French moniker scènes à faire aims to explain a situation in which elements used to describe a particular scene are indispensable, standard, or naturally occurring. For example, two writers can both use “charming” or “quaint” to describe a picturesque town in the South of France. Scènes à faire are used to weed out unprotectable similarities between two works in terms of character, setting or theme. When it comes to tweeting, says the author, 100 tweeters are bound to describe a commonly occurring situation with the same or similar expressions. Thus, what they’re saying can’t be copyrightable, because its not sufficiently original.

While these guidelines are definitely useful, it’s important to remember that when it comes to the “copyrightability” of tweets, each alleged infringing tweet will have to be reviewed on a case-by-case basis. The shift in new technologies causes copyright law to be in constant flux, and courts are setting new standards and rules of law as issues arise. As of now, there’s no hard-and-fast rule for determining whether a tweet can be protected by copyright, but the tweet’s originality will likely be reviewed in order to determine that answer.

Why Twitter Took the Tweet Down Anyway

A visit to Twitter’s Copyright and DMCA page reveals that Twitter “responds to reports of alleged copyright infringement, such as allegations concerning the unauthorized use of a copyrighted image as a profile photo, header photo, or background, allegations concerning the unauthorized use of a copyrighted video or image uploaded through our media hosting services, or Tweets containing links to allegedly infringing materials. It appears, then, that preventing users from posting the actual content of someone else’s tweet is a novel move for the social media giant.

But Twitter is likely just responding to Lexell’s requests in order to comply with the Digital Millennium Copyright Act (DMCA), which provides a “safe harbor” for Twitter from copyright claims so long as it does not try to protect infringing material. Even though it hasn’t been determined whether Lexell’s tweet is sufficiently original enough to be afforded copyright protection, it’s probably better for Twitter to be safe, rather than sorry.

Users who are subject to DMCA takedown notices have 10 days in which to appeal, according to Twitter. Those users may be able to argue fair use depending on the extent of their infringement, but in order to do so, it must first be shown that the tweet was protected by copyright law in the first place.

 

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

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