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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.

Jonathan Lurie

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