A friend directed me to a link for an article commenting on Mark Cuban’s claim that all of his tweets are copyrighted and that no one can use them without his permission. The article discusses Cuban’s, and other’s, ignorance for copyright law, and in so doing cites a blog post in which an IP attorney essentially deems tweets uncopyrightable.
The author of that blog post lays out point-by-point why a tweet is not copyrightable, and why, therefore, the fair use doctrine is not necessary to raise in defending the copying of someone’s tweet. While I have no real issues with the general legal analysis made by the author of that post, and find his argument valid, I do not agree with the general premise that tweets are categorically uncopyrightable. (To be fair, the author of that post did acknowledge this, and argued that the content of most tweets is what makes them uncopyrightable.) In my opinion, tweets are just as copyrightable as any other work. Yes, the 140 character limit makes it more challenging, but that does not preclude a copyright.
Copyright law, generally
As a threshold matter, I want to discuss when something is and when it is not copyrightable. For something to be copyrighted, it must first be an original authorship fixed in a tangible medium of expression. That is, a human being must express something that is not a mere copying of another or recital of facts. The typical inquiry, when determining copyright, is the originality of the expression. It must be “independently created by the author” and it must “posses at least some minimal degree of creativity.” The creativity requirement is extremely low. Time and time again, courts have found the most minimal level of creativity reaches the requisite level for obtaining a copyright in an authorship. But, certain things, like a logo, slogan, or short combination of words are not copyrightable. In addition, there is the scènes à faire doctrine which holds certain parts of a work uncopyrightable because of the common theme expressed. As to the tangible medium of expression, there must be a degree of permanence to the authorship.
It is clear to me that a tweet could easily contain the level of creativity needed to meet copyright requirements. Anytime someone is expressing an original thought, even if quite simplistic (like how they feel in the morning), they are likely creating something that is copyrightable — at least arguably so. If someone were to copy, verbatim, that tweet about a persons feelings in the morning, there’s a possibility of copyright infringement. Courts rarely take it upon themselves to be the arbiters of creativity. Which in my opinion is proper.
An integral part of copyright law is the idea/expression dichotomy. Essentially, an expression of an idea is protectable, but the idea itself is not. (It can be much more nuanced than this, but let’s stick with this for now.) So, for instance, if you were to tweet about how you feel in the morning, and the feeling is similar, or even the same, as that of another person’s tweet, you have not violated copyright law (scènes à faire might be applied in an instance like this). Ideas are not protectable by copyright. If, however, you find a tweet you like, copy that tweet, and then tweet the exact copy, or a substantial portion of it, now you’re getting into murky waters. You have not simply expressed an idea, you have copied and used someone else’s expression. That may be a problem.
This is what I assume Cuban is talking about when he claims copyright over his tweets. His issue, it appears, is with other people (mostly news outlets) copying his tweet and publishing it, exactly as he wrote it, in an article. So, for instance, when he tweets about a terrible referee or player at a Mavericks’s game, he wants that tweet — in it’s entirety and as written — to be under his control. Of course other people can express their concerns or frustration with the same ref or player without violating his rights, and I would hope he doesn’t think he owns the sole right to do that.
This, news outlets or others publishing a copy of his tweet, is what I assume we’re dealing with when Cuban asserts his rights. And for the sake of the analysis here, I am going to assume the tweet in question at least has the possibility of being a copyrightable expression.
The fair use doctrine and twitter
Copyrights can be quite complicated. The brief outline I detailed in the preceding paragraphs is a good way to frame the issue here, but it by no means should be seen as a tutorial in copyright law. Copyright law as a whole is very messy. Because we all are constantly creating copyrighted material and using copyrighted material (just think how often you copy an original authorship of someone else; think email replies), an enormous amount of copyright law has developed regarding the “fair use” of copyrighted works. Fair use was first created by judges, as many of our laws are, and is usually attributed to Justice Story from his opinion for Folsom v. Marsh in 1841. The point of fair use, as I see it, is to find a happy medium between an individual’s rights in their copyrighted work and society’s want to allow others to create without the concern of infringing the rights of another. Since its inception, the doctrine has evolved and was eventually codified in § 107 of Copyright Act of 1976.
The four factors in assessing fair use are are follows:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Time and again, and as the Supreme Court has instructed, courts express the need to look to each factor individually, but also the need to view them collectively, weighing them together and “in light of the purpose of copyright.”
I could spend a long time (a very long time) discussing the many cases that deal with fair use, and that demonstrate its application, but for the sake of brevity, and to keep form boring you, let’s dive into analyzing Cuban’s tweets from the factors alone.
First, the purpose and character of the use. Congress has identified a list of uses that fall under the umbrella of this factor and lean toward fair use, which include the following: criticism, comment, news reporting, teaching, scholarship, and research. Anyone copying and using Cuban’s tweet will likely fall into one of these uses. I think it’s safe to say this factor weighs in favor of fair use.
Second, the nature of the copyrighted work. Here we look to the copyrighted work, and sort of weigh how important it is, in light of the purpose of copyrights generally. Think of a continuum between a purely artistic creation and a mostly fact-based one. I assume most of Cuban’s tweets fall somewhere in between, with a tendency of leaning toward fact-based ones. This factor probably weighs in favor of fair use, but its not as clear cut.
Third, the amount and substantiality. As discussed previously, I assume Cuban is talking about copying and publishing a tweet in it’s entirety (or at least a substantial portion of it). This factor would likely weigh in Cuban’s favor.
Lastly, the effect of the use upon the potential market. Essentially, what is the copyrighted work worth, and if licensed or sold how much would the owner make? I can’t see a market for Cuban’s tweets, and at the very least it has to be nominal. Of course, he is quite the businessman, so I don’t want to write-off this factor completely. There could at some point be a specific tweet of his that is extraordinarily eloquent and insightful, and for which he can find a market, but I doubt it. And, let’s not forget Tweetstorms, which could more easily combine into a copyright. But, this factor likely weights in favor of fair use.
All said and done, retweeting or publishing a tweet that has little value, is for news, commentary, or informational purposes, and likely doesn’t align with the purpose of copyright protection, would most certainly be fair use — if in fact the tweet is copyrightable in the first place.
Put A Cork In It 