Are Tweets Copyrightable?

Mark Cuban asks with an evil grin:

Here is a question for all you legal scholars out there. Is a tweet copyrightable ? Is a tweet copyrighted by default when its published ? Can there possibly be a fair use exception for something that is only 140 characters or less ?

Under federal law, copyrights vest automatically in their author when a work is first fixed in tangible medium. There is some debate as to whether they may exist even earlier -- e.g., while the tweet is still in its author's head, or after it's been spoken but before it's been entered into text -- under state copyright laws. That debate hasn't been tested in court because it's hardly worth suing over. But it's not entirely clear that federal copyright law preempts state copyright law.

So if the subject matter of a tweet is eligible for copyright, then copyright vests upon tweeting. Is it eligible subject matter?

That depends. The Supreme Court dealt with the issue of eligible subject matter in Feist. The rule under Feist is that subject matter, to be eligible, must display a minimal amount of "originality." Originality here means that the author had to make some creative choice about how to select, arrange, or produce the subject matter. For example, the phone numbers in the white pages of a phone book are not copyrightable. But the yellow pages that provide a particular selection and arrangement of phone numbers are. This example is going out of date fast.

A better example might be of tweets during a basketball game. A tweet that reports only the score of the game would not be eligible subject matter under Feist. A tweet that reports the score and exclaims "Mavs Rule!" might be. In general, the more the tweet reflects a selection or arrangement of facts rather than a rote report, the more likely the subject matter is eligible.

Fair use and other defenses (such as scenes a faire) are still available, but irrelevant to the question of whether copyright may vest. Moreover, it would be hard to argue that any reproduction of an entire tweet was a fair use because any supposed fair use is measured against the size of the original. More than a few characters and you're already close to 140! Perhaps the argument would be that it's not individual tweets, but the entire stream that should be the basis for proportionality. That's interesting, but the case law on fair use of spoken word recordings might effectively defeat that argument. Scenes a faire is more promising as a defense to infringement of a copyright in "Mavs Rule!," for example. But only when the reproduction was made in a similar context, right?

I'm sympathetic to the people who complain about whether Mark is really serious about this question. As Robert Frost wrote, "Something there is that doesn't love a wall." But at least before DMCA and the Supreme Court's decision to ignore the plan meaning of the Constitution in Eldred, copyright law did a pretty good job making good neighbors out of authors and artists who are continually borrowing and rehashing each others' work.

Too bad Bill Patry's not still around to weigh in on this one.

Comments

[martinned]

Isn't there any case law on how long something has to be to qualify under this Feist rule? The rule itself seems similar to what I know from Dutch/EU law, but IIRC the courts here look with suspicion on copyright claims for very short subject matter. (For example, because otherwise people might try to use copyright to get around the limitations of the law on brand names.)

[Michael F. Martin]

Yeah, there's a carve out for very, very short subject matter, which is there for trademarks. But there are some very short poems that the Courts here have upheld as eligible for copyright.

"Originality" as a concept is also interesting because it is expressly distinguished from the amount of time required to produce the work: the so-called "sweat of the brow" doctrine for determining eligible subject matter was rejected in Feist. What counts is whether the selection or arrangement of facts reflects something... creative.

The argument could be made that this notion originality is philsophically incoherent or at least ambiguous without more. What is it that makes a selection or arrangement of phone numbers less creative than a selection or arrangement of an artist's favorite prime numbers? Jasper Johns has a painting of a catenary -- original? I think so, but probably would be less inclined to think so if it were not Jasper Johns. I think that last bit gives a clue as to what's missing -- a field of experts recognized for a given domain. Obviously the Courts as an organization are not set up to access a field of experts in order to decide questions about eligible subject matter. And they probably shouldn't be. But should they be delegating that authority to a different organization? Institutional competence is a very important issue in IP.

[Ian McClure]

This is a great question, and I wouldn't be surprised if Mark Cuban's rhetorical (hopefully) question made its way to the courts sometime soon. I read an article in the WSJ just last week that a company has created a business model to monetize the popularity of twitter. This inevitably starts the chain of reaction that creates the incentive to sue at some point.

Anyway, the notion of originality is arbitrary, but its probably the best we have right now. It is leagues ahead of the "sweat of the brow" method, which holds no place in copyright law, or in IP law, except to assist in the calculation of damages (possibly). The de minimis carve out in Feist in 1923 was more than just a short-lived legal rule in the music domain, for it created the legendary "six-bar" rule that lingers through common misunderstanding today. You would be amazed, but while living in Nashville among songwriting circles, I learned that there is still a strong belief that if you take less than six bars of a musical composition, you will be safe from copyright infringement.

The problem with quantifying, or even defining "originality" is that originality in intellectual property, and especially originality in copyright, is based largely on innovation, and not invention. Thus, original songs are based on new twists to old tunes. Original books are based on new twists to old themes. And so on. It is hard to draw the line between original and copying, when innovation from usable parts deserves to be considered an "original" new whole.

[Ian McClure]

The mix-up is fixed. I have explained on many occasions that the "six-bar" rule is not actually a legal rule anymore to songwriter friends, and I instinctively thought of the 1923 Feist case when it was obvious you were referring to the 1991 S.C. case.

In any regard, its an interesting topic.