Are tweets protected by copyright (under US law)?
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| AO Scott's original tweet |
Well, it would seem that under EU law - or rather CJEU understanding of EU law -, the answer should be in the affirmative [do you remember the discussion hosted on this blog about puns and copyright? See here and here]. In its 2009 decision in Case C-5/08 Infopaq the Court found that copyright may subsist in a text extract of 11 words and - more in general - it subsists whenever a work is its author's own intellectual creation.
As fans of all things EU copyright will know, the EU standard of originality has been subsequently defined further, and found to involve 'creative freedom' [Joined Cases C-403/08 and C-429/08 FAPL, on which see here], a 'personal touch' [Case C-145/10 Painer, on which see here], and 'free and creative choices' [Case C-604/10 Football Dataco, on which see here].
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| Its edited version as featured on the NYT |
However, an article appeared today on BBC News shows that this conclusion may not be so easy to reach, at least if one asks it from the perspective of US law.
What happened in this case?
On 4 January last the New York Times featured an edited tweet [according to Twitter's guidelines for using tweets in a different context, ie broadcast, editing third parties' tweets is only possible insofar as necessary due to technical or medium limitations (eg, removing hyperlinks)] by film critic Anthony Oliver Scott to promote the Oscar-tipped Coen Bros' Llewyn Davis.
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| Also Michelangelo likes to use improved versions of his significant human's tweets ... |
The tweet published on the NYT ad [which apparently cost about $70,000] without Mr Scott's permission read as follows: "I'm gonna listen to the Llewyn Davis album again. Fare thee well, my honies."
Apparently the edits were due to the rules of the Academy of Motion Picture Arts and Sciences, which does not allow pre-Oscars negative campaigning.
Besides being a potential case of false endorsement and violation of Twitter's terms [still according to Twitter's guidelines for using tweets in broadcast, Twitter content may not be used in advertisement without prior consent], the question which this Kat finds most interesting is whether Mr Scott could claim copyright infringement in his tweet.
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| ... But his creative efforts are not always appreciated |
Under EU standards, it would seem that his tweet is sufficiently original for the sake of copyright protection, and unauthorised editing might be even considered a violation of Scott's moral right of integrity.
However, what would happen in a US court, should Mr Scott decide (hypothetically) to sue (presumably) the advertisers for copyright infringement? Would his tweet be considered sufficiently original? If so, would the defendant(s) be found liable of copyright infringement? Could fair use be successfully invoked?
Although the US Copyright Act refers to the requirement of originality, and the seminal decision of the US Supreme Court in Feist rejected the 'sweat of the brow' approach, the very brow of this Kat raised in shock when she heard - not too many weeks ago - eminent US copyright scholars holding the view that, at the end of the day, the standard of originality under US law is so minimal to be (almost) neglectable ...
What do US readers think?
