Lifting jokes on Twitter: no laughing matter?

Following a breaking news tweet by Plagiarism is Bad (@PlagiarismBad), over the past couple of days several media have reported [eg here, here, here ...] that Twitter has begun to comply with DMCA takedown requests relating to tweets, notably jokes, lifted in their entirety from someone's own account and re-tweeted without any attribution as to their original author. 

An example is a tweet by freelance writer Olga Lexell (whose Twitter account is now private) - "saw someone spill their high end juice cleanse all over the sidewalk and now I know god is on my side" - which a number of Twitter users have republished without any attribution to her as the author of the original tweet. 

Ms Lexell decided to submit a DMCA takedown request. Apparently not just God, but also Twitter was on her side. The micro-blogging platform decided in fact to withhold the allegedly infringing tweets. However (and incidentally), as IPKat readers can see here there is still a number of tweets that reproduce her joke in its entirety.

Is there anything to be surprised about Twitter honouring this type of takedown requests? Possibly not. 

Not in Europe

From a EU perspective, a 140-character phrase may well be considered sufficiently original to be eligible for copyright protection [see here for a fairly recent controversy in France]. 

In its landmark decision in Infopaq [here] the Court of Justice of the European Union (CJEU) held in fact that a work or a part thereof (in the background proceedings before Danish courts what was at stake was an 11-word newspaper article extract) may be protected by copyright pursuant to the InfoSoc Directive provided that it is original, ie it is its author's own intellectual creation. 

The CJEU further elaborated upon the notion of 'author's own intellectual creation' in its subsequent decisions in BSA [here], FAPL [here], Painer [here], Football Dataco [here], and SAS [here]. Originality under EU law is thus to be understood as involving 'creative freedom' (FAPL), a 'personal touch' (Painer), and 'free and creative choices' (Football Dataco). 

Yes, also cats can tweet

Not in the US (?)

Things may prima facie appear more complex under US law [as was also discussed in a previous Katpost], on consideration that 37 CFR §202.1(a) among other things states that "short phrases such as names, titles, and slogans" are not eligible for copyright protection, "even if ... the short phrase is novel or distinctive or lends itself to a play on words." [see here at §313.4(C)]. However, as discussed here, there is case law that supports the view that statements which rely on brevity and simplicity, eg jokes (even those on Twitter), may well meet the required level of originality and (to borrow from the language used in the Compendium of US Copyright Offices practices) authorship, and be thus protected by copyright. 

Defences and moral rights

So, similarly to the EU context, also under US law the question about lifting a joke on Twitter would then become whether any defences could be available to alleged infringers. Would the fair use doctrine apply in such a context, considering that some of the Twitter accounts that engage systematically in tweet lifting do so for commercial reasons?

In any case, it is worth highlighting how, differently from the EU, under US law unattributed reproduction of a tweet would not raise any particular moral rights issues, either by means of potential infringement of the rights of attribution or (should a tweet be reproduced in an altered, derogatory version) integrity. 

Although Article 6bis of the Berne Convention mandates (some) moral rights protection and it may be arguable that attribution and integrity are protected in this country through a mix of federal and state laws (eg derivative rights, defamation, unfair competition, privacy), under US copyright law protection is in fact limited to "certain authors", as per §106A of the US Copyright Act.