Mark Cuban, whinebox owner of the Dallas Mavericks, recently got tagged by the NBA with a 25k fine for a courtside tweet complaining about officiating.
Here is a question for all you legal scholars out there. 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 ?…
While it seems clear to me that Cuban is just being a dickbag, I think there are some legitimate legal issues there.
Are tweets copyrightable?
Like any good law school monkey I inclined to answer “it depends.” Whether a certain tweet is copyrightable is fact specific. For example, a recitation of facts is not copyrightable. Also, the short phrase exemption may prevent these types of posts from being copyrighted. I can certainly envision certain tweets meeting the originality requirement though — for example an original 140 character poem would likely be copyrightable.
Is a tweet copyrighted by default when its published?
Copyright attaches at fixation. Tweeting almost certainly meets the fixation requirement.
So when an ESPN.com or any other outlet republishes a tweet, have they violated copyright law?
Probably not. Applying the four-factor fair use test, it seems pretty clear the ESPN is well within the fair use defense.
- the purpose and character of your use Even by reproducing the entirety of the message, ESPN is still offering commentary and criticism.
- the nature of the copyrighted work
- the amount and substantiality of the portion taken This is the most interesting factor to me, should the scope of the portion taken be one tweet or the entire tweet stream? In Cuban’s case, this discussion is entirely academic, but I can envision cases where it would matter.
- the effect of the use upon the potential market. Perhaps if Cuban were compiling his feeds and publishing the “best of Cuban’s twitter feed” we’d have something more substantial, but I don’t see any practical commercial impact on Cuban.
The bottom line is that Cuban is being an asshat and is pissed that his twitter feed has been republished by ESPN. Cuban should familiarize himself with the unwritten fifth factor of fair use defense: Which party is an asshole? See e.g. Field v. Google, Inc., 412 F.Supp. 2d 1106 (D. Nev. 2006) (holding that asshole publishing poems on his blog in an attempt to manufacture a claim for copyright infringement in the hopes of making-money from Google’s standard practice of caching blogs is not copyright infringement).
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definitely yes.
My first reaction to this story was to check the Terms & Conditions for the Twitter service. I was expecting to find some provision that asserted ownership of Twitter posts by Twitter – or at least something that limited the rights of the Twitter user to assert copyright in their posts.
Instead, I found the following:
Copyright (What’s Yours is Yours)
1. We claim no intellectual property rights over the material you provide to the Twitter service. Your profile and materials uploaded remain yours. You can remove your profile at any time by deleting your account. This will also remove any text and images you have stored in the system.
2. We encourage users to contribute their creations to the public domain or consider progressive licensing terms.
. . .
Well, Twitter’s T&C’s don’t exactly settle the issue. Twitter just agrees that *if* you have i.p. rights in your posts, you have not granted Twitter an irrevocable license simply by act of posting. (I would argue that the act of posting on such a site creates such a license by default – but that’s an academic argument and beside the point at the moment.) The real issue is whether the material is original enough to be copyrightable. I’m not entirely familiar with Twitter – I admit I have not succumbed to the phenom yet – but from what I understand, each individual Twitter-er has his own page composed entirely of posts by the individual. I would argue that the individual does own a copyright in the posts as a whole (such copyright to include only the content of the posts and not the layout of the page). The collection of posts, even if not copyrightable in themselves, would be entitled to protection as a whole. Applying the four factors under this interpretation would really only change the analysis of the “amount and substantiality” of the use: taking one post of several [hundred/thousand] takes relatively little of the content and substance of the original. Taken together with the other factors (written and unwritten), I believe any copying and reproduction of the single post would be a fair use.
But you can certainly imagine a poem under 140 characters that meets the originality requirement. If this is then included in another person’s compilation it is probably not fair use, even if it is limited to one post in the twitter stream.
I say “definitely yes” because original authorship captured in a medium is all it takes to create rights under the copyright statute, and any minuscule amount of creativity satisfies the originality requirement. To me, that’s the end of the debate about whether it’s copyrightable subject matter.
Everything else is just an affirmative defense in case we cross swords.
“But you can certainly imagine a poem under 140 characters that meets the originality requirement.”
Of course. But I think that was Randazza’s argument so I didn’t think it beared repeating. I actually do think it could still qualify as fair use for the reasons Randazza mentions above.
“Everything else is just an affirmative defense in case we cross swords.”
I wrote a soon to be published paper arguing that fair use is not an affirmative defense under the Copyright Act.
This is not directly relevant, but do you know that entire novels written on cell phones — some, I assume, using Twitter — are all the rage in Japan? I have no idea what Japanese copyright law is, nor if Japanese courts have addressed the issue in the context of such “tweeted” works (and SMS’ed). But since the Japanese legal system as it now stands was initiated by us after the war, I suppose an American judge might reasonably look at what the Japanese courts might have said about this issue (if they’ve said anything, that is).
The Mavericks guy . . . well, I don’t know. How did ESPN obtain his tweet in the first place? Do they subscribe to his tweet feed? If not, was their acquisition legally legitimate? If not, does that imply their publishing of it was illegitimate. (Does “fruit of the poison tree” come into play here? I’m not a lawyer or legal scholar.)
Even whiners have *some* rights.
[…] of copyright. The question “Are Tweets copyrightable?” has provoked debate by many (such as The Legal Satyricon and Tech Dirt), in particular what appears to be the original source of debate Blog Maverick. My […]