Are Tweets Copyrightable?

Please note that this post is from 2009. Evaluate with care and in light of later events.

Brock Shinen writes an in-depth article from the perspective of an intellectual property and entertainment lawyer that says, “No”:

My interest was raised when a great friend of mine pointed me to a blog post on Mark Cuban’s blog (http://blogmaverick.com/2009/03/29/are-tweets-copyrighted/). The question was quite simple: Are Tweets Copyrighted? I quickly jumped in, throwing in a sentence or two about the danger of that way of thinking. What startled me was the high level of participation and the supposed consensus that Tweets are, in fact, copyrightable and copyrighted. That’s why I’m writing this article.

via Twitter and Copyright – “Twitterlogical: The Misunderstanding of Ownership,” by Brock Shinen, Esq..

Shinen goes on to methodically outline and respond to the main arguments:

• Twitter doesn’t own my tweets, so I must
• Fair use doesn’t come into play if the material isn’t copyrightable and copyrighted
• A quick read of sections 101 and 102 of the Copyright Act is not enough
• Does the US Constitution say anything about this topic?
• All Tweets are not created equal
• Facts are not copyrightable
• Idea versus expression
• Copyright protection requires originality and originality requires creativity
• Size matters
• The monopoly of language
• The problem of registration
• Is there a protectable Tweet?
• The parting shot

My short summary? Basically, Shinen maintains it would be impractical and a ridiculous waste of a court’s time to attempt to enforce copyright on less than 140 characters of expression, for reasons he describes in detail.

Considering his logic and my own studies in intellectual property law, I am strongly inclined to agree with Shinen. Very few, if any, individual Tweets are (enforceably) copyrightable, although potentially collections of an individuals Tweets, taken as a whole, may be in certain circumstances.

A final note: Shinen makes the important point that many non-lawyers confuse the actuality of legality with the theoretical legality of something, such as copyright. Just because something may be copyrightable in theory does not make it so in practical terms (equally, just because something can’t be copyrighted doesn’t mean someone won’t make your life miserable trying to enforce their copyright). The law is less about technicalities and more about practicalities than many people realize.

(Thanks to kottke.org for pointing me to this.)

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