Tweets Get Copyright Protection?

Volume 157, No. 54 Friday, March 18, 2011 Should #$%&?$ tweets get copyright protection?

Early February in Chicago brought a copyrightable. Many tweets amount to huge snowstorm, lovingly followed by Inside no more than a single simple idea or bitter, subzero temperatures. Many peo- concept and would not be protected by ple got a few days off due to office IP Law copyright. closures. What were those stranded em- Even if there is some degree of ex- ployees doing to keep busy during the By William T. McGrath pression in a tweet, application of the snow days? copyright doctrine of “m e rg e r ”might A lot of them were following @May- render a tweet unprotectable. orEmanuel on Twitter to see how the Under the merger doctrine, where faux Mayor Emanuel and his cronies there are only a limited number of ways were weathering the storm and the may- William T. McGrath is a member of Davis, to express an idea, the idea and ex- oral campaign. McGrath LLC, where he handles copy- pression are said to “m e rg e , ”re n d e r i n g In case you haven’t seen the blizzard right, trademarkand Internet-related the statement unprotectable. This is of news stories, @MayorEmanuel was a litigation and counseling.He is also necessary to prevent someone from Twitter feed containing a virtually con- associate director of the Center for In- claiming copyright over an idea or con- tinuous stream of tweets sent under the tellectual Property Law at The John Mar- cept that can only be expressed in a name Rahm Emanuel. shall Law School. He can be contacted at limited number of ways. One needed only to read one or two [email protected]. I suspect Mark Cuban’s tweet would tweets to realize that these were not fall victim to the merger doctrine. Not tweets from the real Rahm Emanuel, but to mention that ESPN probably had a from the mayoral candidate in an al- magazine or website.” right under the fair use doctrine to ternate reality. The tweets described the The question is simple, but the an- quote the offending tweet as part of a daily, indeed hourly, activities of Emanuel swer is multifaceted, raising issues un- news story. and his cronies (his dog “Hambone,” his der several core principles of copyright The alternate reality described in the buddy/adviser “A x e l ro d , ”A x e l ro d ’s pet l a w. 1,955 tweets of @MayorEmanuel pre- duck “Q u a x e l ro d ” and Emanuel’s intern The fact that a tweet is only 140 sents a very different situation. Each of “Carl the Intern,” a member of the “Ju - characters at most does not prevent a these tweets is really a component of a nior Engineering Club at Lane Tech”) in tweet from being copyrightable. As long larger work. While certain individual the months leading up to the election. as the tweet has some minimal degree of tweets might not warrant protection (for The tweets are laced with Emanue- creativity and is not merely copied from example, a tweet consisting of nothing lesque expletives, none of which is someone else, it can be considered a but a string of all capitalized curse words deleted. The base of operations for this work of authorship, despite its brevity issued by the fake Emanuel while the fantastical group is the crawl space at (as can a short poem or haiku). In ad- real Emanuel was debating the other Emanuel’s house, the house still being dition, a tweet is sufficiently “fixed” in a candidates), almost all of the tweets are occupied by Emanuel’s tenant. tangible medium to warrant copyright extremely creative in their own offbeat The tweets flowed copiously (1,955 of protection. (In fact, all public tweets are way and they certainly aren’t statements them) until the day after the real elec- now being archived in the Library of of facts (a time vortex!). The tweets of tion when, in a wistful climax, Emanuel C o n g r e s s ) . @MayorEmanuel are more like sen- gets sucked into a time vortex while But not all tweets make the grade for tences in a novel or satirical work. The Axelrod whispers prayers from a mourn- copyrightability. Short, garden-variety compilation as a whole would certainly ing ritual with “tears streaming” and statements probably do not meet even be copyrightable. In fact, @MayorE- then it’s over. You can find the tweets by the low standard of creativity necessary manuel may be a pioneering example of searching @MayorEmanuel on Google. to be “original” as required by copyright a new genre of literature delivered se- Several weeks later, Dan Sinker, a law (for example, “OMG, Justin Bieber rially on Twitter. This concept too is not journalism professor at Columbia Col- is so adorable!!”). Cases such as Fe i s t entirely unprecedented. lege, identified himself as the real author. Publications, Inc. v. Rural Telephone Ser- Japan is the birthplace of the cell- All the media hoopla surrounding vices Co., Inc., 499 U.S. 340 (1991) re- phone novel, or ketai shosetsu, romantic @MayorEmanuel got me to thinking — mind us that “the standard of originality novels typically written by or for young are tweets copyrightable? The question for copyright is low, but it does exist.” women and delivered as text messages. has been asked before. My suspicion is that a vast majority of In 2007, four of the top five works on the In 2009, Dallas Mavericks owner tweets fall into this category. literary best-seller list in Japan origi- Mark Cuban was fined $25,000 by the There are other copyright principles nated as cell phone novels, according to NBA when he issued a tweet that dis- that might render a given tweet un- The New Yorker (Dec. 22, 2008). Per- paraged the referees in a game, saying, copyrightable. Many tweets are no more haps @MayorEmanuel will enjoy the “How do they not call a tech [technical than statements of fact. Facts are not same phenomenon. foul] on JR Smith for coming off the copyrightable. It seems that Dan Sinker has au- bench to taunt our player on the I tweeted recently that the Supreme thored a valuable (and copyrightable) g r o u n d ? ”His gripe was not so much Court granted certiorari in Golan v. piece of Chicago cultural history. The with the NBA fine, but with the fact Holder, a case challenging the consti- burning question is: Will there be a se- that ESPN had posted his tweet on its tutionality of a provision of the Copyright quel? When professor Sinker appeared website. In a later blog entry, Cuban Act restoring copyright to certain foreign on “The Colbert Report” recently, Col- posed the question “Is a tweet copy- works that had fallen into the public bert asked whether we would ever see rightable?” adding that “I did not give domain. That tweet was merely a state- @MayorEmanuel again — to which the anyone permission to republish my ment of a fact and was not copyrightable. author replied, “Time vortexes are funny tweets in a commercial newspaper, A related principle is that ideas are not things, right?”