Tweet, Tweet

The blogs have been atwitter. It all started when ESPN republished without consent a tweet by Mark Cuban, owner of the Dallas Mavericks, that criticized the NBA referees. Cuban then posed the question on his blog whether copyright law protected his tweets. Legal experts joined the conversation, and the debate began. So is a tweet on the Twitter networking site protected by copyright law? The question is complex and without a definitive answer. The prevailing opinion is no, but with some possible exceptions.

A good starting place is the Twitter site's terms and conditions that as of the beginning of October, declare: “You retain your rights to any Content you submit, post, or display ' what's yours is yours ' you own your content.” Twitter is clearly stating that the author of the tweet owns any copyright in the tweet. Is there, however, any copyright to own? The analysis centers on two points: 1) Is a tweet, at no more than 140 characters, too short to be protected by copyright? and 2) Do tweets have sufficient originality to be protected by copyright?

Issues of Length, Originality

Starting with the issue of length, the Office of Copyright's circular 34 states that “names, titles, and short phrases or expressions are not subject to copyright protection,” even if they are “novel or distinctive.” At 140 characters, a tweet is likely to be seen as a short phrase or expression. There is ample case law demonstrating that size matters in copyright protection and deferring to the government circular. ( See, e.g., N.Y. Mercantile Exch., Inc. v. IntercontinentalExchange, Inc. , 389 F. Supp. 2d 527 (S.D.N.Y. 2005).)

Still, certain written expressions, like haikus, are certainly worthy of copyright protection in spite of their diminutive length. ( See Applied Innovations, Inc. v. Regents of the University of Minnesota and National Computer Systems, Inc. , 876 F.2d 626, (8th Cir. 1989).) Could not a tweet be sufficiently original that despite its short length, it would receive copyright protection? The bulk of tweets are unoriginal or even factual in nature. They comment on the weather, what a person is doing on an hourly basis, or observations about world events. Copyright would not protect a tweet that reports “just voted no for 'Does Obama deserve the Nobel Peace Prize'” or “Obama pondering whether to send more troops to Afghanistan. I am pondering too.” See Feist Publications, Inc. v. Rural Telephone Service Co. , 499 U.S. 340 (1991) (holding that facts are not protected by copyright, only that aspect of the work that displays the author's originality).

Since copyright law essentially grants a monopoly over an arrangement of words, courts will be loathe to protect a simple expression of fact that varies only slightly from another simple expression of fact. In Landsberg v. Scrabble Crossword Players, Inc., et. al., 736 F. 2d 485 (1984), the Ninth Circuit Court of Appeals decided that a manual for Scrabble' was not copyright protected because it largely contained factual information about the game. The court explained, “Factual works are different [from fictional works]. Subsequent authors wishing to express the ideas contained in a factual work often can choose from only a narrow range of expression.” Tweets by their factual nature are unlikely to be protected by copyright.

In addition, the shorter the expression, the harder it is to establish originality and creativity. As explained in 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright ' 2.01[B] (MB, Rev. Ed. discussing 37 C.F.R. Section 202.1(a) that denies copyright protection to short phrases like slogans, “it would seem (notwithstanding the above quoted Copyright Office Regulation) that even a short phrase may command copyright protection if it exhibits sufficient creativity. ' There is a reciprocal relationship between creativity and independent effort. The smaller the effort (e.g. two words) the greater must be the degree of creativity in order to claim copyright protection.” See also Identity Arts v. Best Buy Enter. Serv., Inc., 2007 U.S. Dist. LEXIS 32060; Narell v. Freeman , 872 F.2d 907, 911 (9th Cir. 1989) (“ordinary phrases are not entitled to copyright protection”).

If, however, there were a hypothetical tweet that was sufficiently creative and original to warrant copyright protection, the next question is how would the tweeter protect it? While the copyright could exist from the moment the writing is fixed on the server, it takes a registration to enforce such a copyright and prevent third-party use. It is not feasible to register each tweet that a person composes, nor do we know the Copyright Office's position on granting registrations of tweets. It is more practical that one could register a compilation of tweets. Some tweeters, therefore, have been blogging about filing registrations every few months that cover all their tweets in the time period. Since, however, it is unlikely that a single tweet is worthy of copyright protection, it will be even more difficult to have written three months' worth of original, creative tweets. It is likely that the compilation's copyright, then, would cover the format of the overall compilation rather than the tweets contained in the compilation. See Feist Publications v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).

Does that mean that one could create a work that compiled all tweets on the subject of President Obama winning the Nobel Peace Prize without giving attribution to the authors of factual tweets? If most tweets are too factual, too unoriginal, or too short to be protected by copyright, can anyone copy a tweet? In answering these questions, there may be issues of privacy, libel, trademark, or unfair competition (which we will not explore in this article), but it is unlikely that copyright law will serve to prevent the copying.

A Fair Use Defense?

What of that rare tweet that could be protected by copyright law? Would a third-party user be able to mount a fair use defense? The factors in determining whether a fair use has been made are outlined in 17 U.S.C. ' 107. The first factor is the “purpose and character of the use.” Using a tweet in a news story is likely a fair use. Mark Cuban's tweet fell into the category of news, and use of the tweet would be protected just the way news disseminators may use a private letter to which they obtain access. The second factor for determining whether there has been a fair use is the nature of the work. Given the social nature of Twitter and its users, there is a strong public policy argument that the users of Twitter mean to publicize their utterances. Another factor, the effect of the use on the underlying work's potential market or value, also cuts in favor of a fair use defense. There is limited, if any, market value to a single tweet. The tweeter would bear the burden to prove his tweet has any commercial value. Of course, this could be different if an entire compilation of tweets were taken without attribution. Then the remaining factor in the fair use analysis, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” could trump an invocation of the defense.

Commercial Gain

The more difficult case comes in using a tweet for commercial gain. For example, what would happen if an entire compilation of tweets by a celebrity were published without permission or attribution? If a celebrity were to mention a product in her tweet, and then the company selling the product used the tweet without permission in its advertising, would copyright help the celebrity? Again, it is more likely that privacy law and advertising law principles governing testimonials would be at issue. Only if one can prove an underlying valid copyright in the tweet would we come to an analysis of the case law on commercial speech. See Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n , 447 U.S. 557 and its progeny. Then, a case-by-case analysis would be necessary to see whether a fair use defense could be mounted. See Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569, 577 (1994) (on applying a case-by-case analysis to a fair use defense).

Links to Tweets, Tweetbacks

What about links to tweets and tweetbacks? (Tweetbacks are automated systems that collect and republish tweets all on one topic.) Are these systems guilty of scraping? Scraping refers to automated software that searches for content and then copies it on another site. For example, a site that compares prices of a product on the Internet may scrape other sites for information and republish for price comparisons. If the material being scraped is protected by copyright, then the scraping could be unlawful. Given that most tweets are not protected by copyright, the scraping offense would not apply. To the rare tweet that is protected by copyright, the fact that third parties are availing themselves of Twitter's Application Programming Interface (“API”) and complying with its terms of service would likely eliminate scraping as a copyright violation. See Field v. Google Inc. , 412 F. Supp. 2d 1106 (2006) (holding that automated, non-volitional conduct by a search engine's computers in response to users' requests to access copies of copyrighted works that were cached by the search engine did not constitute copyright infringement; invoking safe harbor provision relating to online material of Copyright Act).

Twitter has a draft set of rules for developers of software that interact with Twitter's API. These draft rules suggest that such companies must provide attribution of authorship for any tweets they use, “maintain the integrity of Tweets” by not editing or altering them, obtain the tweeter's “consent before sending Tweets or other messages on their behalf,” and finally, “get permission from the [tweeter] if you want to make their Tweet into a commercial good or product.” While this set of rules has not been formalized, it functions as a set of guidelines for those interacting with the API to preclude a copyright claim as well as a host of other legal claims.

Conclusion

Determining whether copyright law protects a particular tweet is a fact-intensive process. Ultimately, a court will need to look at the issue to provide more guidance on how copyright interfaces with individual tweets, compilations of tweets, and those linking to tweets.