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140-Character Copyright: Are Tweets Subject to Copyright Protection?

Approximately 6,000 tweets are tweeted to Twitter every second.  If you thought that sentence was confusing, that’s nothing compared to hashing out whether these tweets are protected by copyright law.  Twitter’s terms and conditions certainly imply that they believe tweets merit copyright, promising to respond to notices of copyright infringement.

However, the answer to the question of tweets receiving copyright protection under U.S. law is a resounding “it depends.”  Whether your tweet will be protected depends on the content of your tweet and how your alleged infringer used your tweet.

Copyright in the U.S.

In order to receive copyright protection in the U.S., a work must be original and fixed in a tangible medium. Fixation is achieved by storing the work in any medium that can be perceived, reproduced, or otherwise communicated.  To be original, a work requires only minimal creativity.  Once a sufficiently original work is fixed, copyright attaches to that work immediately upon its fixation.  While registering a copyright provides numerous advantages in a lawsuit, it is not necessary to receive copyright protection. twitter lawyer attorney

The act of posting a tweet online certainly is sufficient to establish fixation. Originality is a very low standard, usually only requiring more than mere mechanical reproduction of a previous work.  While recitations of facts are not protectable on their own, a telephone book listing phone numbers could receive copyright protection based on an original form of sorting these numbers.

However, U.S. Courts have historically looked with disfavor on short phrases when it comes to originality.  This is the largest issue in determining whether any given tweet will receive copyright protection.

The Originality Test for Short Phrases Such as Tweets

The courts’ disfavor towards short phrases usually comes up when they are separated from a larger work. So what about the originality analysis when the short phrase is the work—such as with a tweet?

Some types of short phrases are explicitly not protected, such as titles of works or catchphrases. However, the actual length of a phrase is not determinative when it comes to originality; rather the court will look at the uniqueness of the phrase.

In Heim v. Universal Pictures, the court determined that a particularly unique short phrase could receive protection.  As example, the court gave the titular first line of Edna St. Vincent Millay’s sonnet, “Euclid alone has looked on beauty bare.”  They also noted that a line from Jabberwocky, “twas brillig and the slithy toves,” was sufficiently original as a phrase due to the inventiveness of the language.  This established that short phrases could be protected, but these short phrases require more creativity to be protected.

Short phrases, such as tweets, can be protected under U.S. copyright law. However, the higher standard for originality means that not every tweet will be protected. Tweets that merely relate facts certainly cannot receive copyright protection.  However, tweets whose brevity lends to their wit may well be protected.

Recently, Twitter took down a number of posts which copied a joke from freelance writer Olga Lexell without crediting her. Ms. Lexell’s posts are likely the exact sort that would satisfy the heightened originality test.

It is worth noting that the heightened originality test only applies to written tweets. Original photographs embedded in tweets will almost always be subject to copyright protection, be they cat pictures or selfies.

Breadth of Protection for Tweets

While the originality test for short phrases helps determine what tweets will receive protection, it does not end the discussion of the exact breadth of that protection. Copyright protects the expression of an idea, but not the idea itself.  This means that a work is protected from those who copy the expression of the underlying idea of the work; either through exact copying or the creation of a similar work where the author has access to the original.

However, copyright’s goal is not to checkmate the public out of the ability to discuss an idea. Thus, when a work’s expression cannot be extracted from the idea it represents, or that expression is necessary to a genre or concept (a concept known as scenes á faire), it will only receive protection against verbatim copying or no protection at all.

With a work as short as a tweet, the expression and the underlying idea can become very hard to separate. Thus, while verbatim copying of an original tweet will almost certainly be protected, there are many cases where that will be the full extent of their protection. There will also be many tweets so intertwined with their underlying idea as to receive no protection whatsoever.

Defenses for Twitter-Fringers

Potential tweet infringers will have several defenses available to them.  Where a party can establish that they independently created a substantially similar work to the one they are accused of infringing they receive equal copyright protection to the accusing author.  With works as short as a tweet, this defense will be much easier to prove.

Retweeting for non-commercial purposes will almost certainly not constitute infringement as it will be considered fair use, an absolute defense to infringement.  Even commercial retweeting is unlikely to be infringing as the author of a tweet almost certainly gives an implied license to others.

So What Does All This Mean?

Not every tweet is going to be protected. The heightened originality standard for short phrases in the U.S will keep many tweets from qualifying for copyright protection.  Even where a tweet is protected, that protection is often going to be fairly limited.  However, for people like Olga Lexell who make a living off of short jokes, this protection is extremely important.  They say brevity is the soul of wit, but there will have to be a lot of wit in your brevity in order to receive copyright protection on 140 characters.

Managing Your Digital Life After Your Death

A majority of American adults don’t have a simple will. Perhaps you think it’s not necessary, too complicated, too time consuming, or too expensive. Or, you mistakenly believe that your spouse and/or children will automatically receive any assets you have.

Whatever the reason, now is the time to take action to ensure your family is financially taken care of in the event you pass away. The benefits of estate planning are plenty. You can identify your wishes and leave your assets as you wish. You can take advantage of tax savings or save money on court fees following your death.

Once you are ready to write a will, make sure your will covers digital assets. Digital assets include your online accounts, mobile apps for banking, email, social media, video and photo sharing, gaming, personal websites, blogs and more. With the advent of digital era, so many of us conduct our financial transactions and personal business on the web. Digital estate planning helps us manage our digital assets after we die.

Necessary Protocols to Access Deceased’s Digital Assets 

Providing executors access to financial accounts and other digital assets with a power of attorney is standard estate planning. Estate planning attorneys incorporate this standard to their practice. Various online tools for estate planning address how digital assets shall be accessed and to whom they shall be passed. Still, the concept of digital estate planning is relatively new and unknown. When a will is silent on digital assets, the surviving family is left with a burdensome and frustrating procedure when they wish to access the decedent’s digital life.  Wills and Trust

After her husband passed away, Peggy Bush, a 72-year-old resident of Victoria, B.C., wanted to play card games on their iPad, but could not because she did not have a password for their Apple ID account. Peggy knew the iPad’s login password, but did not know the Apple ID password had been set up by her husband. To access all of their downloaded apps, she had to insert Apple ID password.

According to the Washington Post, her husband had a will by which he left her most of his real property as well as personal property. However, his will did not mention digital assets such as online passwords. When she contacted Apple, she could not gain access to apps on the couple’s iPad. After contacting Apple multiple times, providing them with a notarized death certificate, a copy of the will, and the iPad’s serial number, Peggy thought she was finally able to access to their account. Instead, Apple told Peggy to get a court order if she wanted the access.

The Current Law

Although the strict protocol for allowing access to the decedent’s families aggravates the emotional distress of the loved ones who are dealing with their loss, such formalities may be inevitable to safeguard the privacy of the decedent’s while preventing the estate from potential harm. Unauthorized access to online accounts may be subject to attacks such as hacking, fraud, and data breach.

Then how can an executor access certain online records to close a bank account or email account without violating federal law, the privacy of the deceased, and the privacy of everyone who communicated with that person? The answer is not simple.

First, federal law, the Electronic Communications Privacy Act (ECPA), protects the privacy of our online communication content. Without express consent from the sender or recipient, or a court order or warrant, contents of online communications cannot be released after death or incapacitation. However, ECPA, which was enacted nearly 30 years ago, has limitations to address the protection of privacy issues arising from emerging technology let alone the issue of various digital assets of the decedent.

Second, your state may or may not have the relevant privacy law governing digital assets. Some states have passed or are considering digital assets legislation. However, even if the statute addresses digital assets, tech companies such as Facebook, Google, Twitter, and Linkedin set forth terms of service that differ significantly from others.

Access as Default or Privacy as Default?

States are taking up legislation to determine the default for how digital assets are handled. The Uniform Fiduciary Access to Digital Assets Act (UFADAA) model law is one proposal.  UFADAA relies on the principles of fiduciary duty to ensure that no harm results from granting access to accounts. UFADAA allows personal representatives, executors and fiduciaries to obtain control of and access the online accounts of decedents unless the access is prohibited by the Stored Communications Act (SCA) . While nearly half of U.S. states have introduced legislation in 2015 to enact the UFADAA, most of those efforts have stalled due to opposition. Only two states – Louisiana and Delaware – enacted legislation in 2014, and New Mexico legislature, where the bill passed in the State Senate in February 2015, has substantial progress made toward enactment.

Opponents who criticize UFADAA as a disregard of the interests of the deceased, created an alternative act, “Privacy Expectations Afterlife and Choices Act (PEAC).” Mainly, the opposition comes from privacy groups, email service providers and social media companies. PEAC provides limited access to subscriber records and log files, but not to the contents of those records and files unless the deceased user had consented to release of such contents. In short, PEAC sets privacy as default.

No matter which legislation your state enacts, it is best you plan ahead and make sure you include digital assets in your estate planning. Without clear guidance, however, lawmakers should consider encouraging companies to create tools for users to express what they would like to do with their online accounts.

The Price For Privacy

Privacy has been a growing concern for everyone online. A recent Pew Research study found that 93% of the adults they surveyed said that being in control of who can get information about them is important.

However, most companies sell user data to third parties, who then use that data to create targeted ads. Although companies disclose that they engage in this practice in their privacy policies, most users are unaware of what specific groups have access to their information.

One remedy that companies may start using is the pay for privacy model. Since companies are paid by third parties for this data, the pay for privacy model would reimburse a company for the approximate difference if the company didn’t sell the consumer’s data. Consumers would instead pay a subscription fee for websites to ensure that companies won’t sell their information.

What Is Behavioral Targeting?

Many of the ads we see online today are placed through a technique called behavioral targeting. Advertisers work with companies to use technologies like clear gifs and cookies to track your web surfing behaviors online.  Chained Laptop

The data that is collected for behavioral targeting is not necessarily personally identifiable data such as your name or social security number. Instead, behavioral targeting focuses on data like the news articles you click on or the specific product you stare at while shopping on Amazon. The advertisers can then take this information and direct specific ads to you as an individual.

Would Paying for Privacy Work?

In early 2015, AT&T attempted to roll out a pay for privacy program with its high speed gigabit internet service. Users could either receive individually targeted ads or pay an extra $29 per month for a service with ads that don’t use behavioral targeting.

AT&T went under heavy criticism for this option, but it is not illegal. They make no promises that the number of ads would be reduced regardless of what choice consumers make. Moreover, to avoid liability of any state or federal privacy laws, AT&T’s website makes clear exactly what users are paying for if they choose to sign up for the premium option. AT&T continues to offer this option to their GigaPower subscribers.

Some consumers found a workaround through the use of other technologies like Virtual Private Networks. Others argue that as long as companies are transparent regarding their use of data, consumers are willing to make such exchanges for their data privacy.

In 2014, performance artist Risa Puno showed that people were willing to provide her with personal information like their social security number in exchange for a homemade cinnamon cookie.

Although many people have concerns over who has access to their private information, they may be more than willing to trade it for goods or services if presented the opportunity.

Should Companies Use the Pay for Privacy Model?

Pay for privacy models are new for social media websites, but exchanging your personal data for a benefit has been around for a long time. For example, grocery membership cards provide consumers a discount in exchange for personal information. In addition to the information you entered to sign up for the membership, grocery stores can also track and sell your purchase data to provide you with targeted ads at the checkout line.

When companies are earning additional revenue through the sale of consumer data (as well as the resulting targeted ads), pay for privacy may be the only solution companies are willing to try. With low subscription fees or an exchange of goods or services, consumers can agree to pay for their privacy now.

However, the slippery slope of pay for privacy is that privacy may become a luxury that can only be afforded by people who are able to pay. Consumers who are not able to afford an additional $29 per month charge to ensure their informational privacy may be stuck with directed advertisements and other intrusions into their privacy.

National Cannabis Bar Association Supports a Growing Number of Marijuana Lawyers

Marijuana is now legal under state law in Colorado, Washington, Alaska, Washington D.C., and, most recently, Oregon. It is also legal for medical use in 23 other states. Businesses that enter the emerging marijuana market stand to make large profits if they produce a good product. The Huffington Post reported in January that estimates say the US market for legal cannabis grew from $1.5 billion in 2013 to $2.7 billion in 2014, a 75% increase. However, participants in this so-called “green rush” also face a confusing legal landscape that involves myriad potential difficulties.

Marijuana has created a rift in the legal field because it is still illegal under federal law. In certain states, it is difficult for marijuana businesses to receive comprehensive legal advice out of concern that lawyers will further illegal activities. The American Bar Association has expressed ambivalence about the legal profession’s involvement in cannabis as well. However, where marijuana law is practiced, lawyers are beginning to tackle complex legal issues.

What is the National Cannabis Bar Association?

In some cannabis-friendly states, the legal profession is embracing marijuana law. As attorneys begin to delve into this area of law, they need to be able to share ideas and to stay up to date with the latest legal advances. Enter the National Cannabis Bar Association, or NCBA, which was founded earlier this year. The simple goal of the NCBA is to “educate and connect with other cannabis industry lawyers for the purpose of providing excellent, ethical, and advanced legal assistance to this growing industry.”  Marijuana Store

The NCBA Board is comprised of a number of firm-based lawyers and solo practitioners who have already embarked on the complex endeavor of representing clients in the marijuana industry. The Executive Director, Shabnam Malek, is a partner in a boutique marijuana law firm, Brand & Branch LLP. She is a specialist in trademark law, a true area of concern for marijuana businesses now. According to her biography, she “also represents clients in disputes, develops worldwide expansion strategies, and negotiates and drafts agreements, including settlement agreements, co-existence agreements, trademark license agreements, and interstate license agreements.” Ms. Malek is the type of lawyer that the marijuana industry may need in 2015— someone with an understanding of several different areas of law, many related to the issues that all modern businesses face.

What are the Legal Needs of the Marijuana Industry?

Meeting a broad demand for a product requires marijuana businesses to seek the same kind of legal advice that any good business would need. In the current climate, the marijuana industry faces new concerns involving corporate, contract, and employment law. As lawyers like Shabnam Malek know, cannabis-related businesses also face intellectual property issues. For instance, a new cannabis cultivar may be patented if it meets certain criteria. And, with the market as lucrative as it is, holding on to a prize variety of marijuana could mean a big difference to a business.

The conflict with federal law also creates certain unique pitfalls in the industry. For example, marijuana businesses have difficulty moving funds through federally regulated banks. Under 2014 federal guidance, banks can now do some transactions with these businesses. However, the banks must still file special reports that show that each marijuana business is following certain procedures. In another example of federal difficulties, businesses may not be able to register certain federal trademarks, based on language in the law that forbids trademarking certain “immoral” or “scandalous” products. This does not mean that nothing is ever trademarked; but this area requires savvy legal advice.

State laws may also create specific obstacles for marijuana businesses. Legalization of marijuana does not always translate into a statewide acceptance of the drug. Local rules and ordinances may place many prohibitions on the distribution of marijuana and other aspects of business. Taxes are often a key rationale for legalization, and so marijuana businesses must comply with specialized state tax schemes designed for their industry. Finally, states that legalized marijuana are in a sense conducting an experiment: the rules are often still evolving and rapidly changing as policymakers grapple with how to implement new laws.

The NCBA will be a welcome voice in dealing with many of the ins and outs of legalized marijuana. The association can help to create best practices for lawyers and policymakers, meeting the goal of ethical and up-to-date understanding of the field. The NCBA will also help businesses conform to the law and ultimately realize the goal of a profitable and well-regulated marijuana industry.

Court Rules that Batmobile is DC Comics’ Copyrighted Character

The 9th Circuit has ruled that the Batmobile is entitled to copyright protection.

The defendant in the case, Mark Towle, produced replicas of the Batmobile through his business, Gotham Garage. Mr. Towle advertised these replicas on the internet, on a website called Mr. Towle never disputed that he intended to copy the Batmobile, but claimed that he was unaware that copying the various versions of the car was copyright infringement. DC Comics, published the original Batman comic book series, and still owns the exclusive rights to the Batman comic book series.  Batmobile

Let’s explore some of the issues involved in this case. Quoting the decision, “to the Batmobile…”

What is (and isn’t) Copyrightable?

Copyrights can apply to written works, music, plays, movies, and many other materials. However, even when a publisher clearly owns the copyright to their work, questions may remain about what exactly is covered by the copyright. As the decision states, ‘courts have recognized that copyright protection extends not only to an original work as a whole, but also to “sufficiently distinctive” elements, like comic book characters, contained in their work.’ In other words, there may be elements of a work that are not protected by copyright; these tend to be ones that are not so unique to that particular work.

When is a Character Distinctive Enough to be Copyrightable?

A character in a comic book, television show, or movie must be distinctive to be protected under a copyright. The decision in this case states three criteria to help figure out whether a character is truly distinctive enough to be copyrightable:

  • The character must generally have physical and conceptual qualities.

This means that the character has to be more than just a drawing, and more than just an idea. For example, many characters in written books are not considered protected by copyright.

  • The character must be sufficiently delineated to be recognizable as the same character whenever it appears.

In other words, the character must be identifiable even if its look changes somewhat over time as it appears in comic books, movies, or on TV. The character has to have some consistent traits or attributes that let everyone know who (or what) it is.

  • Finally, the character must be “especially distinctive” and contain “some unique elements of expression.”

This means that some common or classic characters (like a basic princess, wizard, or knight) may not meet the criteria, especially if they have a limited role in the work. Characters that are really part of a unique story may qualify, on the other hand, even if they do not really speak (R2-D2) or if they are not sentient (like a car!).

So, is the Batmobile a Character?

According to this decision, the Batmobile is a character. It meets the three criteria above:

It has both physical and conceptual attributes- it has been drawn by comic book artists and made into a 3-D version for TV and movies.

It is recognizable- It has been around in one form or another since 1941. As the case notes, “it is almost always bat-like in appearance, with a bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems on the vehicle.” It also has consistent “crime fighting attributes,” with the most “up-to-date weaponry and technology.”

It is especially distinctive – It is one of Batman’s trusty sidekicks, and has a “unique and highly recognizable name.”

What Does This Decision Mean for DC Comics?

When a publishing company owns a copyright to an element of a work, like a character, it means that no one can make a derivative character (i.e. an adaptation of the original) without the consent of the owner.

What Does This Decision Mean for the Future of Copyright Law?

This decision helps to clarify the law. It defines what types of characters can be copyrighted, and included objects in that definition. This puts potential copyright violators on notice that they can’t make and sell derivative copies of some objects we’ve seen in movies, on TV, or in comic books. We will probably get to see how far this logic goes in future cases, as more publishers, and authors try to stop their characters from being copied.