Does Twitter portend the demise of IP protection for advertising?

This Kat from time to time engages in feline fretting about how tech trends may impact on the future face of IP. His most recent fret recently occurred as he read an article on Bloomberg.com, "Brand-Building with F-Bombs," by Kristen Schweizer, regarding the use of Twitter, as it is being made by for promotional purposes by small businesses, here. The advertising world of Mad Men on Madison Avenue here and the myriad of small businesses, all of whom have sought to promote their goods and services, both in print and over the air, in text and through visuals and sound, have provided a rich reservoir of issues for generations of IP practitioners. Does Twitter threatens to put paid to this cozy relationship? Consider the following two examples as described in the article.

1. A patron named Richard Easton attributes his recent attraction to the mixed grill special at Mangal 2, a family-owned Turkish restaurant located in the East London neighborhood of Dalston, to “the sassy, profanity-laden commentary on the restaurant’s Twitter feed. “ As Easton observed, the feeds are “very focused on London life and making fun of groups like hipsters.” Other such feeds from Mangal 2 are-- “Don’t be too surprised when Facebook buys your Mum for $3 billion,” and another (during the Winter Olympics) -- “Today’s special is the Sochi Kebab: same kebab but served ice cold. Gay customers get 40 percent off. Putin’s not welcome.” The overall effect of these feeds, in the words of Mangal 2’s Twitter meister, is that the tweets are “real and it’s got a voice instead of just Instagramming food images and saying today’s special is so and so.”

2. A half-hour away by foot from Mangal 2 is the Dolphin pub. A devoted patron of the pub (and a former writer at MTV), David Levin, created @The_Dolphin_pub and tweeted such humorous feeds as “FYI: for the price of a gym membership, you could take a skipping rope to the pub three times a week and drink gin while you work out.” While the pub itself has its own Twitter account, Levin continues to tweet with the blessing of the pub and has tens of thousands of followers. Numerous new patrons reportedly first made their way to the Dolphin after encountering the pub via Levin’s tweets. As Levin observes, “Twitter is now part of the equation for branding.” As for Levin himself, he has gone on to tweet for Adidas, L'Oréal and IKEA.

The theme that derives from these anecdotes is that the 140-character tweet may serve as an alternative to traditional forms of advertising, perhaps supplanting these forms entirely for certain kinds of small businesses and even encroaching on the advertising activities of mega-brands. If these trends persist, and Twitter becomes an established part of the advertising firmament, they may well have a disruptive effect (or even destructive impact) on certain kinds of IP practices. Think of the range of possible IP issues in the traditional advertising context: the text of the ad itself; the look and feel of the ad; the trade marks and slogans accompanying the ad; the visual component of the ad; the accompanying music (original or secured from rights holders or collecting societies); and disputes about copyright ownership as between the advertiser and the commissioned ad agency and staff.

The question that arises is how many of these IP issues will survive a Twitter-driven advertising world? On first Kat-blush, the answer would seem to be—not much, if anything. Perhaps the content of a given tweet might attract copyright, if it meets the threshold for originality, but the nature of such tweets, generated under the mantra of “be punchy in your text”, casts doubt on the extent to which copyright will provide a useful tool for possible third-party challenge. More promising is, perhaps, the use by the tweet of a third-party’s trade mark, the rights to which have already been secured by registration or substantial prior use. But even if unauthorized copyright or trade mark rights might be found in a given tweet, the immediacy of tweets makes enforcement difficult, if not well-nigh impossible. In this dystopian IP world, traditional IP may become a rare, if not extent legal species.

If this be so (and not without a judicious degree of irony), perhaps the IP community should be cheering for Twitter’s demise. Consider the recent observations reportedly made, here, by Peter Thiel, the legendary Silicon Valley investor, here. Thiel is skeptical about Twitter’s ultimate place in the social media landscape. Thiel does not deny that Twitter has potential. But to realize it, “[y]ou’d have to fire everybody and start over,” Thiel said. “It [Twitter] feels like it’s vastly underperforming its potential. It’s a horribly mismanaged company -- probably a lot of pot-smoking going on there.” But for every Thiel there are presumably savvy Silicon Valley types who are sanguine about Twitter’s long term perspectives. Good for Twitter, but perhaps less good for IP practitioners.