Tweet twitter tweeted: Can copyright protect tweets?

By Manisha Singh and Raashi Jain, LexOrbis
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We live in a world where people find it imperative to share their thoughts, even if inane. The success of social networking websites such as Twitter is a clear testament to this need. However with the arrival of Twitter – one of the largest social networking websites, with some 320 million users – new intellectual property issues were bound to rise.

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Manisha Singh

Twitter boasts of extreme intolerance towards copyright infringement; the terms of service clearly state that ownership of the content vests with the respective user and in case of copyright infringement, the content suspected to be infringing will be removed. Twitter also has the authority to terminate the account of a user who is held to be a repeated infringer. Though Twitter allows users to “retweet”, i.e. to repost a tweet which belongs to another user, while crediting the tweet to the latter, the question that arises is whether a person can copy the tweets of others without crediting them.

Although the initiative shown by Twitter to protect its users’ IP rights is commendable, the question of whether tweets are capable of being protected by copyright law has plagued the world since the website came into existence. This discussion took on new life when Mark Cuban, the owner of Dallas Mavericks, tweeted about an NBA game and his tweet was picked up and republished by ESPN without his permission.

Raashi_Jain_-_LexOrbisRecently, Twitter was in the news for deleting jokes on the ground of copyright infringement. Olga Lexell, a freelance writer based in Los Angeles, found one of her tweeted jokes to have been posted by others without due credit being given to her. She argued that writing jokes is her bread and butter.

Twitter deleted the infringing tweets after she filed a takedown request.

On the Indian front, Vasuki Sunkavalli, Miss India Universe 2011, was accused of copying tweets belonging to writer and journalist Sadanand Dhume. Though the matter was settled amicably, the question of copyrightability of tweets was once again brought to the fore.

The question of whether tweets can be protected by copyright is complex; certain characteristics of tweets may serve as obstacles to such protection.

Since a tweet, exclusive of embedded media, can be only 140 characters, its size is an impediment. Short phrases, titles, etc., are usually not protected under copyright law because most of them fail to reach the level of originality required for copyright protection. They are generally seen as lacking in originality and creativity.

Another factor that may work against tweets getting copyright protection is that the content of most tweets cannot be protected under copyright law, for instance, “Had some yummy pasta” is neither original nor creative and is therefore not copyrightable.

The concept of scènes à faire also serves as an impediment. According to this, certain works cannot be given copyright protection since the elements used to describe a scene are necessary and that scene cannot be described but through those elements. It is likely that if a group of people witness an incident and then tweet about it, they will more or less come up with the same description.

Despite the above impediments, most legal experts are of the opinion that a decisive yes or no cannot be given with respect to the question of copyrightability of tweets. The answer varies from tweet to tweet. While most tweets cannot obtain copyright protection, certain tweets may fulfil the requirement of originality and creativity, just as haiku, which are short Japanese poems, may be accorded copyright protection.

The issue of copyrightability of photographs embedded as tweets came up for consideration before a US court in Agence France Presse v Morel. The facts of this case date back to the Haiti earthquake of 2010 when Daniel Morel took some photos of the devastation following the earthquake and uploaded the photos on Twitter via his Twitpic account. The photos were then copied by Lisandro Suero without Morel’s consent and ended up being distributed by Agence France Presse (AFP) and Getty Images to customers around the world, with the photos credited to Suero.

AFP and Getty Images took the defence that they were allowed to appropriate the photos under Twitter’s terms of service. However, the court rejected this defence and held that by appropriating the photos, both AFP and Getty Images had infringed Morel’s copyright in the photographs. The court held that with the exception of the licence granted to Twitter and its partners under their terms of service, Twitter users’ retain their rights to the content they post, and that Twitter did not give a licence to AFP to sell Morel’s photos. Morel was awarded US$1.2 million in statutory damages.

Among future generations, the 21st century will be remembered for many things, a major one being the advent of social media websites.

The issue of tweets being protected under copyright law has not yet come before the Indian judiciary. It will be interesting to see the stance taken by the courts when confronted with this issue in the future.

Manisha Singh is a founding partner of LexOrbis, where Raashi Jain is an associate.

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