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Twitter Law: Are Tweets Copyrighted?

Mark Cuban wonders, “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 ?”

I got to thinking about this when I tweeted about an NBA game.  I tweeted to the people who follow me.  While I never asked that they not distribute it to other tweeters,  i did not give anyone permission to republish my tweets in a commercial newspaper, magazine or website.

So when an ESPN.com or any other outlet republishes a tweet, have they violated copyright law ?

Is twittering the process of publishing in 140 characters or less, or is it a private communications to those that follow you ? Even if you dont block outsiders from seeing it ?

As best I can figure:

  1. Yes, tweets — like any other writing — is automatically copyrighted.
  2. Yes, there can be fair use of tweets.

What say you?

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. sam says:

    He rocks in the tree-top all a day long
    Hoppin’ and a-boppin’ and a-singin’ the song
    All the little birds on J-Bird St.
    Love to hear the robin goin’ tweet tweet tweet
    [Chorus]

    Rockin’ robin (tweet tweet tweet)
    Rockin’ robin (tweet tweet tweet)
    Oh rockin’ robin well you really gonna rock tonight

    Every little swallow, every chickadee
    Every little bird in the tall oak tree
    The wise old owl, the big black crow
    Flapping them wings sayin’ go bird go
    [Chorus]

    A wordy little raven at the bird’s first dance
    Taught him how to do the bop and it was grand
    He started goin’ steady and bless my soul
    He out bopped the buzzard and the oriole

    He rocks in the tree-top all a day long
    Hoppin’ and a-boppin’ and a-singin’ the song
    All the little birds on J-Bird St.
    Love to hear the robin goin’ tweet tweet tweet

    Maybe given recent history, we should change the third line to

    All the little birds on K-Bird St.

    Wot?

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  2. Steve Verdon says:

    Don’t care. Twitter sounds like a juvenile service for people who just can’t wait to share the latest banal moments of their lives.

    Like or Dislike: Thumb up 0 Thumb down 1

  3. Michael says:

    No, copyrights on tweets will do nothing to promote the arts. And I don’t believe that you’re right about all writing being automatically copyrighted.

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  4. James Joyner says:

    I don’t believe that you’re right about all writing being automatically copyrighted.

    The law’s right here. Key points:

    1. Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

    2. Copyright in a work protected under this title vests initially in the author or authors of the work.

    3. [R]egistration is not a condition of copyright protection.

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  5. Bithead says:

    However the rest of this may be, I’m not sure Cuban’s complain about 140 chrs being a limitation is correct. Consider the word “Coke”.

    And Steve; It can actually be more than that. It depends on the groups you hang with.

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  6. Steve Verdon says:

    I don’t believe that you’re right about all writing being automatically copyrighted.

    First off, IANAL, but here goes with my understanding of the issue….

    If I write down a federal law it isn’t copyrighted. However, if I then have a lengthy discourse on why said federal is wonderful or stupid or whatever, the lengthy discourse is copyrighted, whether it is published or not. So aside from things like federal and state laws, and other facts (grass is green) most things written down are copyrighted. For example, technically this comment is copyrighted, by me. It is my opinion and therefore not facts, nor a federal or state law. Which is really nice since now you cannot reproduce it without my permission for the next 105 years. Well, unless you can get into one of the fair use clauses, but even that is not an automatic safe haven.

    May Sonny Bono rot in Hell.

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  7. Michael says:

    1. Copyright protection subsists, in accordance with this title, in original works of authorship

    The argument being that just because you compiled 140 characters into a sentence, doesn’t mean you have created an original work.

    I’m not sure Cuban’s complain about 140 chrs being a limitation is correct. Consider the word “Coke”.

    Coke is a trademark, it is not copyrighted. Which is good for you, otherwise your very reference to it would be a violation of Federal law.

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  8. Michael says:

    or example, technically this comment is copyrighted, by me.

    Which James reproduced in an email to me. Does that mean that he is technically in violation of your copyright? I didn’t see anything under the site’s policy whereby commentators automatically grant reproduction rights to James.

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  9. James Joyner says:

    I didn’t see anything under the site’s policy whereby commentators automatically grant reproduction rights to James.

    Au contraire:

    Copyrights: All original material at OTB Media (Outside the Beltway, OTB News, OTB Sports, Gone Hollywood) is copyrighted by James Joyner and the post’s author. Copyrights to materials quoted from other sources remain with their original owner. Permission to quote excerpts is granted with the proviso that credit must be given and, where practicable, hyperlinked back to the URL containing the post.

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  10. Steve Verdon says:

    See, James and I own that comment. Now, well do X, then millions of dollars!!! Muhahahaha.

    The argument being that just because you compiled 140 characters into a sentence, doesn’t mean you have created an original work.

    A random collection of characters? Hmmm, now that would be interesting. Each character is by itself a fact. So I guess the question is did any thought go into the arrangement. I’d argue random doesn’t fit the bill.

    Still, so long as we aren’t talking random characters then, yes it would be copyrighted. You have to undertand, copyright laws are very broad and last for a very long time. The notion is no longer about promoting original ideas and new works of art, but rent protection, IMO.

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  11. Michael says:

    All original material at OTB Media (Outside the Beltway, OTB News, OTB Sports, Gone Hollywood) is copyrighted by James Joyner and the post’s author.

    States who owns the copyrights on the original material your post here. This is a statement of fact, not an agreement to grant rights.

    Copyrights to materials quoted from other sources remain with their original owner.

    States that you don’t hold copyright on quoted material, that those rights remain with the author.

    Permission to quote excerpts is granted with the proviso that credit must be given and, where practicable, hyperlinked back to the URL containing the post.

    Grants limited permissions for reproduction of your original material.

    Nowhere in there do you state that I must grant you permission to reproduce my comments here, in emails, or in a bound hard cover copy of “Michael’s greatest comments”.

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  12. Michael says:

    Still, so long as we aren’t talking random characters then, yes it would be copyrighted.

    So, if I twittered “OMG, Obama is teh suck!”, then I have a copyright on that phrase? Can I reasonably claim that this phrase is an original work? If someone else posts the exact same thing, having no knowledge of my post, are they in violation of my copyright?

    In order to qualify as an original work, doesn’t there have to be a reasonably assumption that an exact copy of the work would not be independently created by someone else? Nobody is going to independently write an exact copy of Moby Dick, but with an upper limit of 140 characters (and many thousands of users), I don’t think you can make that assumption for every tweet.

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  13. James Joyner says:

    Can I reasonably claim that this phrase is an original work? If someone else posts the exact same thing, having no knowledge of my post, are they in violation of my copyright?

    Ah, but you’re confusing “is protected by copyright” with “I’d win this in court.” As a practical matter, it would probably be hard to win a copyright infringement case on a tweet. But, as a matter of principle, Twitterers have a copyright in what they tweet.

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  14. Steve Verdon says:

    So, if I twittered “OMG, Obama is teh suck!”, then I have a copyright on that phrase?

    Based on my understanding, and IANAL, yes assuming you are the first to write it.

    Can I reasonably claim that this phrase is an original work?

    Yes, assuming you were the first to write it.

    If someone else posts the exact same thing, having no knowledge of my post, are they in violation of my copyright?

    Yes.

    In order to qualify as an original work, doesn’t there have to be a reasonably assumption that an exact copy of the work would not be independently created by someone else?

    No.

    Nobody is going to independently write an exact copy of Moby Dick, but with an upper limit of 140 characters (and many thousands of users), I don’t think you can make that assumption for every tweet.

    True, but as James said, you are not likely to get much by pursuing things in court. Using your example, unless somebody comes along and starts making a small mint off of your phrase “OMG, Obama is teh suck!” and you were the first to come up with the idea, and you can prove it, you are unlikely to win much of anything, aside from really ticking off the judge.

    On the other hand, if we were to re-write history a little and have Megan McArdle tweet what has in effect become Jane’s Law, “The devotees of the party in power are smug and arrogant. The devotees of the party out of power are insane.” Now that might actually get somewhere. It is often repeated, and it could be argued it is worth something.

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  15. Michael says:

    Ah, but you’re confusing “is protected by copyright” with “I’d win this in court.”

    What is the difference? If you wouldn’t win it in court, it’s because the judges will have determined that it is not protected by copyright law. If you did win, it’s because they determined it was protected.

    Based on my understanding, and IANAL, yes assuming you are the first to write it.

    I’m not a lawyer either, but I don’t believe that the courts would interpret the law so broadly as to give me a copyright on that phrase.

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  16. James Joyner says:

    What is the difference? If you wouldn’t win it in court, it’s because the judges will have determined that it is not protected by copyright law.

    No, it’ll be because you can’t prove original authorship.

    I’m not a lawyer either, but I don’t believe that the courts would interpret the law so broadly as to give me a copyright on that phrase.

    You can’t copyright ideas — the notion that Obama sucks isn’t copyrightable. It would be hard to prove original authorship of “Obama is teh suck.” And you’d probably have to trademark it to get anywhere on a licensing suit.

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  17. Steve Verdon says:

    What is the difference? If you wouldn’t win it in court, it’s because the judges will have determined that it is not protected by copyright law. If you did win, it’s because they determined it was protected.

    You’d likely win on that account, but win in terms of damages/losses…nada.

    I’m not a lawyer either, but I don’t believe that the courts would interpret the law so broadly as to give me a copyright on that phrase.

    Don’t assume common sense where none exists.

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  18. Michael says:

    Don’t assume common sense where none exists.

    I have to, in order to keep convincing myself that we live in a sane country.

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  19. Alex Knapp says:

    James,

    You’re right, on both counts.

    But if you sued someone over stealing a tweet, unless you registered the copyright the most likely result would be spending WAY more in court costs than you’d ever receive in damages.

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  20. Bithead says:

    Hmmm. We seem to be dancing along the line diving what is legal vs what is moral, and forgetting that the law is often immoral either in the letter of it, or it’s implementation.

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