For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Tuesday, 7 January 2014

Are tweets protected by copyright (under US law)?

AO Scott's original tweet
Well, it would seem that under EU law - or rather CJEU understanding of EU law -, the answer should be in the affirmative [do you remember the discussion hosted on this blog about puns and copyright? See here and here]. In its 2009 decision in Case C-5/08 Infopaq the Court found that copyright may subsist in a text extract of 11 words and - more in general - it subsists whenever a work is its author's own intellectual creation. 

As fans of all things EU copyright will know, the EU standard of originality has been subsequently defined further, and found to involve 'creative freedom' [Joined Cases C-403/08 and C-429/08 FAPL, on which see here], a 'personal touch' [Case C-145/10 Painer, on which see here], and 'free and creative choices' [Case C-604/10 Football Dataco, on which see here].

Its edited version as featured on the NYT
However, an article appeared today on BBC News shows that this conclusion may not be so easy to reach, at least if one asks it from the perspective of US law. 

What happened in this case?

On 4 January last the New York Times featured an edited tweet [according to Twitter's guidelines for using tweets in a different context, ie broadcast, editing third parties' tweets is only possible insofar as necessary due to technical or medium limitations (eg, removing hyperlinks)] by film critic Anthony Oliver Scott to promote the Oscar-tipped Coen Bros' Llewyn Davis

Also Michelangelo likes to use improved
versions of his significant human's tweets ...
Mr Scott's original tweet read: "You all keep fighting about Wolf of Wall St. and Am Hustle. I'm gonna listen to the Llewyn Davis album again. Fare thee well, my honeys."

The tweet published on the NYT ad [which apparently cost about $70,000] without Mr Scott's permission read as follows: "I'm gonna listen to the Llewyn Davis album again. Fare thee well, my honies."

Apparently the edits were due to the rules of the Academy of Motion Picture Arts and Sciences, which does not allow pre-Oscars negative campaigning.

Besides being a potential case of false endorsement and violation of Twitter's terms [still according to Twitter's guidelines for using tweets in broadcast, Twitter content may not be used in advertisement without prior consent], the question which this Kat finds most interesting is whether Mr Scott could claim copyright infringement in his tweet.

... But his creative efforts
are not always appreciated
Under EU standards, it would seem that his tweet is sufficiently original for the sake of copyright protection, and unauthorised editing might be even considered a violation of Scott's moral right of integrity. 

However, what would happen in a US court, should Mr Scott decide (hypothetically) to sue (presumably) the advertisers for copyright infringement? Would his tweet be considered sufficiently original? If so, would the defendant(s) be found liable of copyright infringement? Could fair use be successfully invoked?

Although the US Copyright Act refers to the requirement of originality, and the seminal decision of the US Supreme Court in Feist rejected the 'sweat of the brow' approach, the very brow of this Kat raised in shock when she heard - not too many weeks ago - eminent US copyright scholars holding the view that, at the end of the day, the standard of originality under US law is so minimal to be (almost) neglectable ...

What do US readers think? 

14 comments:

Anonymous said...

Doubt the issue would be whether the tweets qualify as sufficiently original. The question would one of "fair use."

Jeff Roberts said...

Good post, Eleonora. I think tweets are sufficiently original (well maybe not mine ;)) to get US copyright protection -- especially as presented as a series or ones the include images.

For practical purposes, though, nearly every instance of reproduction would amount to news reporting or some other form of fair use. Finally, it would be odd if Twitter's licenses permit CBS and other big TV entities to splay your tweets whereever they (this is indeed what Twitter's TOS allow), while everyone else was denied the right to reproduce them.

Sally Cooper said...

Is it daft to think in terms of Twitter being conversation - so (the exact or inexact) repeat of a Tweet is equivalent to reporting something heard in conversation ? Agree there's likely to be copyright in a sting of 140 (or less) characters - I definitely find myself fine-tuning Tweets ("creative effort") but shouldn't we strive to keep copyright out of this area / leave any issues to other areas of law as appropriate ?

Anonymous said...

Retweeting is accepted by users of twitter, and presumably a sort of licence exists therefore for a tweet to be copied and spread.

Susan Hall said...

With regard to conversations, budding authors were (are?) often advised to sit on the top of a bus with a notebook, on the basis that overheard conversations are better than anything one could make up. Treating Twitter on the same basis sounds riskier, though just because of the permanent record issue (same with defamation, for that matter; things overheard in the pub are much less likely to end up in law suits than things in Tweets).

Anonymous said...

Some interesting comments. Interesting because there appears to be some misconceptions about what is copyrightable, what items possibly copyrightable can be contracted away, and what those with those contracted away rights then can do with their now possessed contracted rights and all of that overlayed with the potential for a Fair Use defense (which is NOT a defense that is applied universally, but rather is a case by case defense).

Some items to keep in mind:
a) Conversation is not copyrightable as it is not fixed in a tangible media.
b) the umbrella of rights in copyright can be contracted away.
c) as property rights, the contracted rights can then be broken apart and selectively re-contracted by the rights owner.
d) as mentioned, Fair Use defense rules are applied on a case by case basis.
e) copyright protection is not available for names, titles or short phrases (at least in the US - see circular 34).

A bit off-topic, but the same circular limits protection to software since the heart of software is formulaic (what software does is the formula part, the copyright protected part is the 'text directions' as it were, the non-operable portion)

Clive Bruton said...

Anonymous:
>a) Conversation is not copyrightable as it is
>not fixed in a tangible media.

Doesn't it become fixed if someone transcribes it in some form (or otherwise records it)? That's not to say that I think it automatically becomes the correct subject matter, but I'm not sure fixation is really the issue.

Anonymous said...

Clive,

What is transcribed may capture copyright - but fixation is a definite requirement, and it would be the transcription rather than the conversation that would be the subject matter.

Clive Bruton said...

Anonymous:

>What is transcribed may capture copyright -
>but fixation is a definite requirement, and it
>would be the transcription rather than the
>conversation that would be the subject matter.

I think I may just need to clarify what I previously wrote, because it seems that it was misunderstood.

Clearly fixation is a requirement, s3(2) CDPA 1988, Norowzian v Arks, Green v NZ Broadcasting, Nova v Mazooma… and I'm sure the doctrine is well covered in the USA.

What I meant previously was that "conversation" may or may not be suitable subject matter, but the issue as to whether it is or not is not fixation. Since if a conversation is transcribed or otherwise recorded then the issue of fixation disappears - if by "fixation" you mean something akin to s3(2) CDPA.

If you mean something else, ie that it is not suitable subject matter, then I don't really have a firm view about that either way.

Anonymous said...

We may be talking past each other.

A conversation and a transcription of a conversation are two separate and distinct items.

While the transcription is completed with the hope of accuracy (typically), they remain two different items.

Clive Bruton said...

Anonymous:
>A conversation and a transcription of a
>conversation are two separate and distinct items.

I am absolutely alive to the idea that the idea (or expression of that idea) and the method of fixation are separate things. That's exactly the issue in Norowzian, which is misunderstood in some literature: Norowzian's "film" Joy is a dramatic work, and the fact that it is fixed on film (rather than in writing) has no effect on the scope of copyright protection it enjoys.

A video of traffic along Euston Road probably has no authorial copyright protection, but the recording itself may be protected as an "economic" film right (as per CDPA 1988 s5B).

It's not clear to me that, unequivocally, conversation has no authorial protection in UK law - as long as it has some form of fixation. Clearly a sound recording of that conversation is a different, economic, right to any authorial right.

Is the law in the USA different in this respect?

Anonymous said...

Clive,

You lose me on your question.

Conversations - in and of themselves - are simply not protected.

A conversation transformed through fixation is protected - regardless of the fixation (as long as the fixation is the type necessary for protection). I realize that sounds a bit circular, but it appears that you still think that something about pure conversation holds something protectable. Such does not.

Clive Bruton said...

I think I'll have to call upon George Bernard Shaw to close this thread: "Two countries divided by a common language"

Anonymous said...

Clive,

Love the quote - have a great weekend.

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