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).