I was reading an interesting article earlier today. It was a fairly thorough discussion of whether Twitter would successfully trademark “tweet”. The article discusses the challenges Twitter now faces because it essentially sat on its hands with respect to intellectual property protection of “tweet” during the company’s infancy. Twitter’s “tweet” trademark application is now on hold because prior applications for “tweetmarks,” “cotweet,” and “tweetphoto” have already been submitted. Now Twitter (1) is fighting with the USPTO, (2) is currently stuck with minimal protection through enforcement of common law trademark rights, and (3) faces the possibility of “tweet” entering the realm of generic terms, thus disqualifying it from trademark protection. While Twitter’s inertia is an example of what not to do with potentially valuable intellectual property, I bring this up only as a side note.
This “tweet”-trademark article actually started me down a path that led me to another very interesting post / website: http://www.canyoucopyrightatweet.com/. So, can you? This site provides you some good copyright pointers while analyzing 140 character updates. Let’s use social media to brush up on a few basics:
- “Copyright law doesn’t extend to facts, no matter how they are described.” How many tweets are nothing more than a recitation (or retweet) of facts? Just like that, your 140 character “creative masterpiece” may have cast itself outside of the Copyright Act’s protective embrace.
- “There are only so many ways you can describe a particular scenario, and copyright law isn’t going to let you get a monopoly on one way if there aren’t too many other ways to say the same thing.” Remember that if two people independently come up with the same creative work, both can have a copyright in that work. When you are dealing with 140 character messages, the chance of coming up with substantively and stylistically similar updates increases significantly (nice alliteration, that). Even if you have a tweet that may be copyrightable, does it really get you anywhere if everyone else on the subway train, at the sporting event, in the CLE, or attending the concert has an equal claim as a result of their nearly identical tweet?
- “Titles are not protected by copyright protection. Neither are slogans and short phrases. Why? Because they tend to identify something (as in the case of titles), which renders them factual, even if witty. Also, because the length contributes to an overall belief that they lack legal originality under copyright law, short sentences, phrases, etc., often do not rise to the level of protectability.” Enough said. Great pointer.
- “You give a monopoly over language to true original authorship, not to a couple of sentences about Disneyland, your dog, coffee or the woman in the elevator with you.” I hope that is true. Otherwise, maybe the author of http://www.canyoucopyrightatweet.com/ is going to come after me for lifting a couple of sentences–unoriginal ones I would argue–for this post. The point is well taken. Courts are loathe to grant monopolies on in language for short, simple, or common arrangements of words. So let it be written, so let it be done.
