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Intellectual Property Legal Services
IP / Marketing Intelligence-Driven Business Strategy

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A. Introduction

At some point, we've all probably said something we wish we could take back, or at least limited the number of ears privy to it secondhand. Some reluctant broadcasters poorly chose their forum, and therefore must suffer the consequences. Others, while aware they may not have selected the most discrete medium, may be aghast at just how far their messages may have traveled.

Presumably, such was the case when Mark Cuban, owner of the Dallas Mavericks, tweeted criticism of NBA referees. Without Cuban's consent, the Entertainment and Sports Programming Network (ESPN) republished this tweet. This inspired Cuban to post the question on his blog, "Is a Tweet Copyrightable?" Many have attempted to provide insight. As with most legal issues, the answer is, "it depends . . ."

After a quick review of what a Tweet is and the basics of copyright protection, this work considers tweet copyrightability.

 

A. Introduction
  B. Tweeting
  C. Tweet Copyrightability
   1. Generally
   2. The Short Phrases Prohibition
   3. The Creativity Component
  D. Tweet Copyright Enforceability
  E. Conclusion


B. Tweeting

Conceptually, Twitter explains that it "is a real-time information network powered by people all around the world that lets you share and discover what's happening now. . . and . . . creates a platform for you to influence what's being talked about around the world."[1] Twitter encourages users to "Join the conversation."[2]

In operation, once a Twitter user signs up for an account, they are permitted to use a profile page on which they may display information about themselves and an infinite number of messages or "tweets" of up to 140 characters in length. Twitter does not restrict the content of users' expressions.

Twitter users can be notified of others' tweets by "following" them. Twitter users also can search for tweets that pertain to particular subjects, like "copyright," or be notified of them as they are posted. Twitter users may comment on or reply to tweets at large or privately with other twitter users.

Because tweets are character constrained, tweet composition does not necessarily follow the Strunk and White Elements of Style to which pre-twitter generations may be accustomed. Tweets typically include words, phrases, abbreviations, shorthand references and hyperlinked urls, e.g. "RT @EmergingStrat: #iplaw great law firm! www.emergingstrategies.com."

C. Tweet Copyrightability

  1. Generally

The United States Constitution authorizes "Congress [to] promote the Progress of Science and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings."[3]

Copyright protection exists from the time the work is "fixed in any tangible medium of expression," for example when an e-mail message is digitally stored on a server. Formal registration through the US Copyright Office is not required to perfect copyrights. Further, maintaining copyright protection regarding works publicly distributed on or after March 1, 1989 does not even require a copyright notice.[4]

US Copyright Law recognizes only original expressions. "The standard for 'originality' is minimal. It is not necessary that the work be novel or unique, but only that the work have its origin with the author - that it be independently created. Little more is involved in this requirement than a 'prohibition of actual copying.'"[5]

"[T]he creative component of originality is key; it represents the original intellectual conception of the author. What copyright protects, therefore, are 'writings' that are the fruits of an author's intellectual production, thought, and conception."[6] Accordingly, facts are not be protectable for lack of originality,[7] however, original arrangements thereof would be.

  2. The Short Phrases Prohibition

Federal enabling regulations provide that "[w]ords and short phrases such as names, titles, and slogans . . ." are not subject to copyright protection.[8] It is important to understand that this enabling legislation does not control the Constitution.

Federal courts have been reluctant to afford protection for short phrases because at some point the idea can merge with its expression. As fewer words are used to express an idea, fewer limitations are imposed on the idea is expressed, hence a broader idea. Ideas may be expressable in only a limited number of ways.

Courts also have been reluctant to lock up phrases that may be common idioms of the English language.[9]

On the other hand, many courts have applied § 202.1(a) with little consideration as to the originality or "intellectual production" of some expressions.[10] In Johnson, the district court appreciated that the claimant's "Test Market Pricing" advertisements were associated with an economic or marketing approach that was novel in the automotive industry. This finding clearly supported concluding that the advertisements were the "fruits of an author's intellectual production, thought, and conception," therefore susceptible to copyright protection under the Supreme court's rationale in Feist.[11] Instead, the Johnson court ruled that the claimant "can lay no claim to copyright protection of its expression [of claimant's intellectual production, thought, and conception] in a short phrase."[12]

More recently, courts have begun to set aside rigid application of the "short phrase" test, finding copyrightability in view of their context.[13] In Health Grades, the claimant's proprietary method that evaluated data and information and produced "health grades" of 1, 3 or 5 stars and/or awards was found to be "independently creations [that] . . . display at least the minimal degree of creativity necessary to be deemed original expressions."[14] In CCC Information Services, claimant's "Red Book" evaluations of cars also were found to be original creations "based not only on a multitude of data sources, but also on professional judgment and expertise."[15] The CCC Information Services court distinguished the claimant's work from "short phrases [that] are typically unprotectable because they are either insufficiently independent or insufficiently creative or both."[16] "Accordingly, it does not make sense to state categorically that no combination of numbers or words short enough to be deemed a 'phrase' can possess 'at least some minimal degree of creativity' as required for copyright protection under Feist."[17]

The Health Grades and CCC Information Services cases accord great weight to the use of data analysis and/or professional expertise to generate the copyrightable expression. Expressions lacking such foundation are evaluated with Professor Melvin Nimmer's sliding scale, which focuses on the "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."[18]

A tweet, at less than 141 characters, may seem a likely candidate to be found a § 202.1(a) short phrase. The tweet word limitation certainly increases the risk that the expression may merge with the idea. But, harmonizing with CCC Information Services, it does not make sense to state categorically that an expression of 140 characters or less necessarily merges with the idea. Indeed, following the Feist-Health Grades line of jurisprudence, tweet length should be irrelevant if the tweet possess "at least some minimal degree of creativity."

  3. The Creativity Component

A famous copyrighter of short phrases of common words is Dr. Ashleigh Brilliant,[19] a self described "Haight-Ashbury hippie" and a former college history professor, described in a Wall Street Journal 1992 profile as "history's only full time, professional published epigrammatist." Dr. Brilliant claims to have created over 10,000 epigrams following these rigid rules: "no reference to fads or fashion, no rhyme used for its own sake, no puns, and nothing that isn't easily translatable. . . There's also a limit of 17 words . . ."[20] One of Dr. Brilliant's most noted epigrams is "'Even weeds have needs' . . . which he markets [as with his other epigrams] on hand lettered postcards, on a few licensed products, in books and in a syndicated panel ['Pot-Shots'] carried by about a dozen newspapers."[21]

In litigation involving some of Dr. Brilliant's epigrams,[22] the district court found that Dr. Brilliant's phrases were distinguished by conciseness, cleverness, and a pointed observation, therefore protected by copyright. Not determinative, but perhaps instructive is Dr. Brilliant's explanation: "The reason ['Are we having fun yet?' is] on a bumper sticker is that it's a take-off on what kids say, whereas [Brilliant Thought No. 1942], 'I think I'm enjoying what I think is happening' . . . is a profound comment on the nature of reality."

It just so happens that Dr. Brilliant tweets.[23] Dr. Brilliant also attaches copyright notices to his tweets.[24] While past successes do not ensure future successes, Dr. Brilliant's thousands of copyrighted epigrams fixed in conventional media strongly suggest that his future epigrams fixed in twitter media (data storage media) will be just as copyrightable.

That twitter users are encouraged to "Join the conversation," certainly may motivate some to invoke common idioms of the English language. These expressions should be barred from copyright protection as with any other non-tweet idiomatic expression.

Twitter's prefatory inquiry above the tweet entry box, "what's happening?", may encourage users to enter expressions that are primarily factual, such as "I am working at the Library of Congress." Such expressions, as with any other fact-laden expression, also should not be protectable for lack of originality.

D. Tweet Copyright Enforceability

Establishing copyright infringement normally requires proof of: (1) existence of valid copyright registration; (2) access to the copyrighted work; and (3) substantial similarity between the works. US Copyright Law makes no exceptions for tweets.

Traditional fair use defenses to infringement claims includes where such expressions are primarily for: (1) education; (2) parody; (3) comment; (4) reporting; and (5) research. As yet, no tweet-specific defenses have found root.

Accordingly, enforcing a copyright infringement claim or defending against one should not be any different than for any other expression.

E. Conclusion

Mr. Cuban may have selected a very public forum, Twitter, to vent his views about professional basketball referees. That forum inherently is quite viral and spreads messages nearly instantaneously around the globe, or at least wherever the wide world web may be tapped. Nevertheless, Mr. Cuban's selection of such forum does not dedicate to the public his copyrights in whatever expressions he may have chosen to tweet.

Whether Mr. Cuban's tweets are copyrightable, hence enforceable, is highly fact-intensive. If the product of data and professional analysis, then copyrightability is likely. Otherwise, the tweet must exhibit increasing creativity with decreasing length.

© 2010 Emerging Strategies, LLP ☎ 301.915.0950

[1]www.Twitter.com/about as viewed on February 15, 2010.

[2]http://twitter.com as viewed February 15, 2010.

[3]United States Constitution, Article I, Section 8, Clause 8.

[4]Copyright notice consists of three elements: (i) the symbol ©, the word "Copyright", or the abbreviation "Copr."; (ii) the year of first publication; and (iii) the owner's name.

[5]Applied Innovations, Inc. v. Regents of the University of Minnesota and NationalComputer Systems, Inc., 876 F.2d 626 (8th Cir. 1989).

[6]FeistPublications, Inc. v. Rural Tel. Serv. Co., 111 S. Ct. 1282, 1288 (1991).

[7]Landsberg v. Scrabble Crossword Players, Inc., et.al., 736 F. 2d 485 (1984)(manual for Scrabbler was not copyrightprotected because it largely contained factual information about the game."Factual works are different [from fictional works]. Subsequent authors wishing to express theideas contained in a factual work often can choose from only a narrow range ofexpression.").

[8]37C.F.R. § 202.1(a).

[9]Morrissey v. Proctor & Gamble Co., 379 F. 2d 675 (1st Cir. 1967)(Granting amonopoly would eventually "checkmate the public").

[10]See Johnson v. Automotive Ventures, Inc., 36 USPQ2d 1385 (W. Va 1995).

[11]See supra note 6.

[12]Johnson,36 USPQ2d at 1388.

[13]See Health Grades, Inc. v. Robert Wood Johnson Univ. Hosp., Inc., 92 USPQ2d 1583 (D.Col. 2009); CCC Information Service, Inc. v. Maclean Hunter Market Report, Inc., 33 USPQ2d1183 (2nd Cir. 1994).

[14]Health Grades, 92 USPQ2d at 1588.

[15]Id. at 1591 (internal quotationsomitted).

[16]Id., quoting South Co., Inc. v.Kanebridge Corp., 73 USPQ2d 1071 (3rd Cir. 2004).

[17]Id.

[18]2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §2.01[B] See also Identity Arts v. Best Buy Enter. Serv., Inc., 2007U.S. Dist. LEXIS 32060; Narell v. Freeman, 872 F.2d 907, 911 (9th Cir.1989).

[19]See http://www.ashleighbrilliant.com.

[20]The Wall Street Journal (front page), January 6, 1992 , Exactly How ManyBrilliant Thoughts Are There? 5,632. Mr. Brilliant Wrote Them – And CopyrightedThem: You Must Know No. 1041.

[21]Id.

[22]"Imay not be totally perfect, but parts of me are excellent," "I have abandonedmy search for truth and am now looking for a good fantasy" and a derivation ofa third.

[23]@AshleBrilliant.

[24]"Oneday my love for you will be the oldest living thing in the universe. -- ©Ashleigh Brilliant"

@AshleBrilliant 3:03PM Feb 14, 2010.