The Copyrightability of Tweets and Why We Should Not Care
Jerry D. Tice II
Table of Contents
I.
INTRODUCTION................................................................................................................. 1
II. COPYRIGHT LAW APPLIED TO TWEETS .................................................................. 2
A.
ORIGINALITY ....................................................................................................................... 3
B.
FIXED IN A TANGIBLE MEDIUM OF EXPRESSION .................................................................. 5
C.
“MONEY TWEETS” ............................................................................................................... 6
III. YOU OWN A TWEET; SO WHAT? .................................................................................. 7
IV. PURPOSE OF THE COPYRIGHT SYSTEM ................................................................. 13
V.
CONCLUSION ................................................................................................................... 16
i
I.
Introduction
“Rise and grind people! Let’s go! I’ll meet you at the top! GO!!!!!!”1 This 2012 Tweet
authored by a famous rapper, P. Diddy, is deep, moving, and perhaps inspirational, but would
preventing others from using this written work “promote the Progress of Science and useful
Arts?”2 At first blush, the often-incoherent ramblings of celebrities—as well as Twitter users in
general—strewn together in a mere 140 characters are certainly not within the realm of “useful
Arts” that the framers intended to promote. After all, the more cynical among us—or those with
a particular sense of humor—have recognized Twitter’s true worth: to “expose[] the soft
underbelly of the celebrity simple mind. [To] undo everything their publicists try to mask.”3
Nevertheless, some persist in the belief that Tweets fall squarely within the protection of
1
Deanne Brooke, Top Motivational Celebrity Tweets of 2012, JSNCAFE, Jan. 7, 2013,
http://jsncafe.com/2013/01/07/top-motivational-celebrity-tweets-of-2012/ (quoting P. Diddy).
2
U.S. CONST. art. I, § 8, cl. 8 (“To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries”).
3
Noel Sheppard, Gutfeld Slams Carrey and Biggs: ‘America is Great Because Washed up
Comics Have the Right to Suck,’ NEWSBUSTERS, Mar. 30, 2013,
http://m.newsbusters.org/blogs/noel-sheppard/2013/03/30/gutfeld-slams-carrey-and-biggsamerica-great-because-washed-comics-ha (quoting Greg Gutfeld).
1
copyright law.4 “Yes [a Tweet] has a copyright, and my explanation is copyright law,” asserted
Mark Cuban, “Ask any lawyer.”5 And with celebrities sometimes earning as much as $10,000
per tweet,6 there is an argument that Tweets are valuable and useful and thus should be afforded
copyright protection.
Part II of this Paper will provide a background of copyright protection and apply
copyright law to Tweets. Next, Part III will discuss the impracticalities of using the current
copyright regime to protect Tweets. Finally, Part IV will discuss the purpose of copyright
protection and argue that copyright law should not be expanded to alleviate many of the burdens
present in the current regime that fall upon those attempting to protect ownership rights in
Tweets.
II.
Copyright Law Applied to Tweets
Congress derived its power to create copyright protection from the United States
Constitution.7 Congress then used this power to enact the copyright statute, stating that
“protection subsists . . . in original works of authorship fixed in any tangible medium of
4
See, e.g., Ryan Corazza, Does Mark Cuban Have a Case? Reporting from the Jock-o-sphere:
Mark Cuban says his Tweets are copyrighted. He’s both right and wrong., ESPN, Apr. 2, 2009,
http://sports.espn.go.com/espnmag/story?id=4036185.
5
Id.
6
Laura Case, How much do Celebrities get Paid to Tweet?, WETPAINT, June 18, 2013,
http://www.wetpaint.com/network/articles/how-much-do-celebrities-get-paid-to-tweet.
7
U.S. CONST. art. I, § 8, cl. 8 (“To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries”).
2
expression . . . from which they can be perceived, reproduced, or otherwise communicated . . . .”8
Thus, for a Tweet to rise to the level of copyright protection, it must possess only two
characteristics: it must be (1) an original work of authorship that is (2) fixed in a tangible
medium of expression.
a.
Originality
While there is no statutory definition of “original work of authorship,” courts have
historically held that the bar to meet the originality requirement is generally very low: the author
must merely “embody ‘some modest amount of intellectual labor.’”9 In fact, “[o?]riginality for
copyright protection amounts to . . . little more than a prohibition of actual copying.”10
However, a 1991 decision by the Supreme Court raised this low bar of originality, requiring two
elements: (1) the work must be independently created by the author and (2) it must display some
minimal degree of creativity.11 While the Court did not articulate a test to determine what
constitutes a minimal degree of creativity, it did explain that the standard remains easy to meet,
8
17 U.S.C. § 102 (2012).
9
Atari Games Corp. v. Oman, 888 F.2d 878, 882 (D.C. Cir. 1989) (quoting Balt. Oriels, Inc. v.
Major League Baseball Players Ass’n, 805 F.2d 663, 668 n. 6 (7th Cir. 1986)).
10
Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2nd Cir. 1988) (internal quotations omitted).
11
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 358 (1991).
3
“even a slight amount will suffice.”12 It appears that originality will not be an obstacle for the
vast number of works that are more than simply facts or compilations of facts.13
It may be more difficult for shorter written works—such as those in the variety of 140
characters or less—to qualify for copyright protection, however. While there is no statutory
requirement that originality be judged on the length of the work, the Copyright Office has
nonetheless refused to register “[w]ords and short phrases such as names, titles, and slogans . . .
.“14 Significantly, courts have also held that short phrases are un-copyrightable, especially if the
work lacks creativity.15 However, if a short phrase does show a spark of creativity, a court may
find protection.16 The court in Religious Technology, for example stated that poems, haikus,
musical scores, and other short, repetitive works fall into the realm of copyright protection if
12
Id. at 345.
13
Id. at 362 (holding that a compilation of numbers in a telephone directory was “so mechanical
or routine as to require no creativity whatsoever” and “devoid of even the slightest trace of
creativity.”).
14
37 C.F.R. § 202.1 (2012).
15
See, e.g., Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir. 1992).
16
See, e.g., Applied Innovations, Inc. v. Regents of the Univ. of Minn., 876 F.2d 626, 635 (8th
Cir. 1989) (holding that even though the statements were short and simple, they were more than
mere “fragmentary words and phrases”); Stern v. Does, No. 09-01986 DMG, 2011 WL 997230,
at *4-6 (C.D. Cal. Feb 10, 2011) (stating that a short statement can meet the originality
requirement if it exhibits “some minimal level of creativity”).
4
they are sufficiently creative.17 However, it is likely that many short works cannot be protected
because they are unoriginal and uncreative (or merely an “idea”18), admittedly a virtue of most
short works, but not because the works themselves are short. While it is more difficult for
shorter works to rise to the level of “original” under Fiest, if the work is sufficiently creative and
more than a mere “name, title, or slogan,” then it is conceivable, perhaps probable, that the work
will qualify for copyright protection.
b.
Fixed in a Tangible Medium of Expression
If the bar to meet the originality requirement is low, then the fixation requirement is akin
to a one-inch depression in a field of wildflowers. A work meets this requirement when it “is
sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise
communicated . . . .”19 It is well-settled that work saved in digital form qualifies as fixed in a
tangible medium.20 Even data saved on RAM, which is deleted as soon as a computer is
disconnected from power or rebooted, has met this requirement.21 All Tweets, by their very
nature, meet the fixation requirement.
17
See Religious Tech. Center v. Lerma, No. 95-11070A, 1996 WL 633131, at *4 (E.D. Virginia
Oct. 4, 1996).
18
17 U.S.C.A. § 102(b) (1012).
19
17 U.S.C. § 101 (2012).
20
See Advanced Computer Servs. of Mich., Inc. v. MAI Sys. Corp., 845 F. Supp. 356, 362-63
(E.D. Va. 1994).
21
See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993); Apple
Computer, Inc. v. Formula Int'l, Inc., 594 F. Supp. 617, 622 (C.D. Cal. 1984).
5
c.
“Money Tweets”
With over 400 million Tweets per day flowing to the Twitter platform, it is probable that
there have been—and will continue to be—Tweets that meet both the originality and fixation
requirements. Tweets, by definition, meet the fixation requirement: they are saved in digital
form on servers that permit them to be perceived, reproduced, and communicated. Thus, the
originality requirement, with its “independently created” and “minimal creativity” prongs, is all
that stands between a Tweet and copyright protection.
A majority of Tweets do not qualify for copyright protection because they are simply
facts (e.g., updates about one’s day, scores of sporting events, or recapping the dramatic events
of last night’s episode of “The Bachelor”).22 Even more, many Tweets fall out of the realm of
protection because they are simply short words or phrases and thus considered uncreative or only
an idea.23 Not to mention that there would likely be no protection for the almost indiscernible
ramblings of celebrities and commoners alike.24 While these circumstances would remove an
overwhelming majority of Tweets from the realm of copyright protection, the potential remains
22
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344 (1991) (holding that facts are not
copyrightable).
23
Unfortunately for P. Diddy, “Rise and grind” would be considered a short phrase by the
Copyright Office. See 37 C.F.R. 202.1 § (2012).
24
Lil Wayne, for example, Tweeted that “Dedikatio 4 komin next month.” Jason Parham, The
50 Worst Celebrity Spellers on Twitter, COMPLEX, (Nov. 16, 2012, 8:57 AM)
http://www.complex.com/tech/2012/11/the-50-worst-celebrity-spellers-on-twitter/#./lilwayne?&_suid=136580779702406482461014887832. Additionally, see nearly anything
tweeted by Ryan Lochte. https://twitter.com/ryanlochte.
6
for a limited number of Tweets to meet the originality and fixation requirements. While an
infinitesimal percentage of Tweets will meet the dual prongs of the originality requirement, with
approximately 146 billion Tweets published per year, there are likely a few gems in the
Twittersphere that could qualify for copyright protection—the “money tweets.” The bottom line
is that the all-encompassing hypothetical as to whether or not Tweets are protectable is
misguided; “[t]he question is not: Are Tweets Copyrightable. The question is: Is this Tweet
Copyrightable.”25
There is no basis to categorically include or exclude Tweets as copyrightable. The
analysis is no different for a Tweet as it is for a speech, poem, movie, or novel: one must simply
determine whether the Tweet is original—independently created and minimally creative—and
whether it is fixed in a tangible medium of expression (as all Tweets are). When approaching the
analysis from this backdrop, it is possible, perhaps even probable, that Tweets exist that qualify
for copyright protection. But this analysis is only the beginning.
III.
You own a Tweet; So What?
The hypothetical Tina Twitter scours through millions of tweets; filters out those that
contain only facts, short, uncreative phrases, or merely “ideas;” further, she Tweets a few haikus
and is left what she subjectively believes is certainly at least one “money tweet.” Tina
meticulously skims through copyright statutes, case law, and secondary sources and is absolutely
certain that one her Tweets is copyrightable. But what does she do after she texts her friends the
news and tells the world through her blog that this is her work and she owns it? In other words,
25
Brock Shinen, Twitterlogical: The Misunderstandings of Ownership, SHINEN L. CORP. (2009),
available at http://www.webcitation.org/5ovHZMUQR.
7
“the bigger question is what would you do even if you did own a Tweet?”26 Almost certainly,
Tina Twitter would wish to devise a scheme to profit from her ownership in the Tweet.27 There
is no requirement to register a work before it receives copyright protection.28 Thus, Tina can
simply sit back and watch the money train roll in . . . right? Wrong. Even if Tina does have
ownership in the Tweet, there is currently no practical and economically viable way to enforce
her ownership.
First, Tina must find a person or entity to assert her copyright against, an infringer. A
copyright protects the exclusive right to reproduce, prepare derivative works, distribute, perform,
or display the protected work.29 Finding an infringer may prove to be difficult. A Tweet, by
definition, is 140 characters or less. Additionally, it is extremely easy to copy.30 It would be
difficult for Tina to monitor the Internet and other sources of written work to find others who are
26
Id.
27
Although she may simply wish to prohibit others from using the Tweet, this is unlikely
because the Tweet would probably be lost in the abyss of the billions of Tweets posted each year.
Regardless, the analysis would likely be the same.
28
Copyright in General, UNITED STATES COPYRIGHT OFFICE (Jul. 12, 2006),
http://www.copyright.gov/help/faq/faq-general.html#register.
29
17 U.S.C. § 106 (2012).
30
A Tweet can easily be copied through a device’s copy/paste feature or by simply the characters
down on paper.
8
using short sentences and phrases that are substantially similar to her Tweet. 31 And from a
practical standpoint, the infringer must have the capital to make bringing a lawsuit economically
viable.
Next, Tina must register the copyright with the U.S. Copyright Office before she can
bring a lawsuit for copyright infringement.32 Although Tina may submit an electronic filing to
the Copyright Office to register a basic claim for thirty-five dollars33, this claim will likely be
rejected in light of 37 C.F.R. § 202.1.34 Tina will likely need an attorney to advocate on her
behalf in a reconsideration procedure before the Copyright Office.35 To register her copyright,
31
Although Tina would be aware of copying if someone “retweeted” her work. FAQs about
Retweet, TWITTER, https://support.twitter.com/articles/77606-faqs-about-retweets# (last visited
Apr. 12, 2013).
32
33
Copyright in General, supra note 28.
Copyright Fees, UNITED STATES COPYRIGHT OFFICE (Apr. 1, 2013),
http://www.copyright.gov/docs/fees.html.
34
Registration of “[w]ords and short phrases” “cannot be entertained.” 37 C.F.R. § 202.1 (2012).
Receiving a refusal from the Copyright Office, however, is sufficient to give a court jurisdiction
to hear the lawsuit. Strategy Source, Inc. v. Lee, 233 F. Supp. 2d 1, 2-3 (D.D.C. 2002). But a
plaintiff would likely need to overcome the rejection to receive a substantial monetary damages
or attorney fees. Infra note 35 and accompanying text.
35
See 37 C.F.R. § 202.5 (stating that the request for reconsideration must include reasons why
the work was improper refused along with “legal arguments in support of those reasons.”
Because the complex and often arcane nature of U.S. copyright law creates significant barriers to
access to justice in the realm of intellectual property, this author is of the opinion that a layman
9
Tina would likely be forced to spend time pursuing an attorney who would agree to take the case
and then pay the attorney’s hourly rate—all for the uncertainty of receiving registration.
The most daunting obstacle to protecting Tweets is that to receive statutory damages, a
copyright owner must file an application to register her work within three months of the time the
Tweet is posted.36 A copyright owner that qualifies for statutory damages can elect to recover
the statutory damages in lieu of actual damages.37 If Tina qualifies for statutory damages, then
she is entitled to a recovery of at least $750.38 However, if the infringer is able to show that it
was unaware or had no reason to believe the act constituted infringement—as would likely be
argued in the case of a “retweet” or any other infringement of a tweet due to the difficulty of
copyrightability—the court may, in its discretion, reduce the amount of damages to a mere
$200.39
In lieu of statutory damages, one could elect to receive actual damages,40 but ihere, the
well is even drier. Under actual damages and profits, a copyright owner “is entitled to recover
the actual damages suffered by him or her as a result of the infringement, and any profits of the
would be better served to have an attorney argue for reconsideration before the Copyright Office
than if that layman were to endeavor to argue himself.).
36
See 17 U.S.C. § 412 (2012).
37
17 U.S.C. § 504(c)(1) (2012).
38
Id.
39
17 U.S.C. § 504(c)(2) (2012).
40
Notably, an applicant only needs to file a copyright application (whether it is accepted or
denied) to be eligible to receive actual damages. See supra note 34.
10
infringer that are attributable to the infringement . . . .”41 What actual damages would a
copyright owner suffer from an infringer “retweeting” the work or copying it into another
document? A copyright owner would need to be extremely creative to make an argument that
she suffered any damages at all. Just as troubling, it is unlikely that the infringer received any
profit from the infringement. And even if there is, it is very difficult to prove—many hours of
attorney’s billable hours would be necessary for discovery and brief writing just to receive
damages that are likely to be extremely small. Anyone with copyright ownership in a Tweet
hoping to make a profit by bringing a lawsuit would certainly not attempt to do so by proving
actual damages or profits. Absent a few theoretical exceptions,42 it is practically impossible.
The uphill climb in a realm of statutory damages is just as steep from a practical
standpoint. A Twitter user would be required to register each Tweet that she subjectively
believes to be copyright-worthy. This will almost certainly lead to multiple Copyright Office
refusals to register, each of which an attorney would need to spend multiple billable hours
fighting. All of this time and money expended on the hopes that the owner can find a nonjudgment-proof infringer to receive a minimum of $750 in statutory fees would likely prove to
be a fruitless endeavor. No reasonable Twitter user would find it viable to pursue this option.
Dwarfing all of these concerns is the substantial cost of litigation. This entails much
more than the cost of simply filing a complaint with the court. The alleged infringer will likely
assert that it “was not aware and had no reason to believe that [the] acts constituted an
41
17 U.S.C. § 504(c)(1) (2012).
42
One such theoretical exception is a scenario where an infringer places the work on a
commercially-sold product which generates profits. But even then, it would be difficult for a
copyright owner to show that consumers purchased the product because of the copyrighted work.
11
infringement“43 in addition to a fair use defense.44 Both of these are factual questions that will
require in-depth discovery, brief-writing, and oral advocacy—tasks which cause the amount of
hours the attorney spends on the case to quickly rise. Significantly, the average cost of
attorneys’ fees for a plaintiff in a copyright infringement case is $800,000.45 The term “money
tweet” was coined less than ten pages ago, but its existence will likely be short-lived; many
words may describe a tweet that qualifies for copyright protection, but “money” is not one of
them.
Clearly, it is wholly impractical for the average Twitter user to protect her Tweets. The
cost of registering for copyright and asserting the rights greatly outweighs the minimal amount of
damages that a plaintiff would likely receive. In this light, the current copyright system does not
and cannot protect the average Twitter user’s work.
43
This could reduce statutory damages. 17 U.S.C. § 504 (2012).
44
The fair use defense is an extremely common defense to copyright infringement that is met
when the infringement is “for purposes such as criticism, comment, news reporting, teaching, . . .
scholarship, or research.” BILL PATRY, PATRY ON FAIR USE § 1:1 (2012).
45
Traverse Legal, PLC, Copyright Attorney Warning, Copyright Attorney Thoughts on
Infringement, CYBER TRIAL LAWYER, http://www.cybertriallawyer.com/copyright-attorney (last
visited Apr. 13, 2013). The plaintiff however, may be awarded “reasonable attorney’s fee[s]” 17
U.S.C. § 505 (2012). The risk of not being awarded these fees and being responsible for
hundreds of thousands of dollars, however, is not justified by the possible reward of a judgment
that may very well be capped at $750. See 17 U.S.C. § 504(c).
12
IV.
Purpose of the Copyright System
The time and money required to bring a copyright infringement claim for a Twitter user
is too burdensome for any reasonable user to defend her rights.46 Thus, some argue, the system
is broken and swift action must be taken to protect the rights of Twitter users.47 One could argue
that a new administrative agency must be implemented to provide assistance to Twitter users;48
that the Copyright Office should look more favorably to shorter works and analyze them based
on creativity rather than length alone; or perhaps that publishing work on Twitter and similar
social networking sites that are widely available to the public should cause the work to
automatically fall within the realm of statutory damages. Before weighing the benefits and
burdens of possible solutions, however, it is a more beneficial exercise to rise above the canopy
and focus upon the forest itself. What is it that copyright protection is intended to protect? How
does a Tweet promote this goal? When viewing the problem that it is too burdensome for a
Twitter user to protect her work, the first question should not be, “[w]hat are we going to do
about it?” The leading question is, “[w]hy do we care?”
46
Statement of the United States Copyright Office before the Subcomm. On Courts, the Intern.,
and Intellectual Property, Comm. on the Judiciary, Remedies for Small Copyright Claims, 109th
Cong. 2 (2006).
47
See, e.g., Rebecca Haas, Twitter: New Challenges to Copyright Law in the Internet Age, 10 J.
MARSHALL REV. INTELL. PROP. L. 231, 250 (2010) (discussing the challenges of copyright
infringement on the Internet and proposing a regulatory agency to work in the context of
copyright law).
48
See id.
13
The purpose of copyright protection is to benefit society, specifically by “promoting
broad public availability of literature, music, and the other arts.”49 The framers provided
guidance to Congress by stating that the purpose is to “promote the Progress of Science and
useful Arts.”50 Thus, copyright law should both “promote” and “progress” the field of written
works. The word “progress” in the Constitution’s intellectual property clause “connotes an
evolution or development from the present status quo into a better, improved and more advanced
future.”51 The idea of “progress” in the Constitutional Convention of 1787 was to place a limit
on Congress’s intellectual property powers, others argue: Congress only has the power to grant
copyright protection if the work advances the knowledge of society.52
In Justice Holmes’s view, progress includes more than just “aesthetic and educational
value;” progress exists in works that have commercial value.53 Essentially, he argued, it is not
the judiciary’s role to determine what constitutes “progress”—the public makes this
determination with its pocketbook.54 As long as the work shows creativity and the public finds
it useful enough to invest in, then, under Justice Holmes’s view, the work promotes progress.
49
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). See also Alina Ng, The
Author’s Rights in Literary and Artistic Works, 9 J. MARSHALL REV. INTELL. PROP. L. 453, 463.
50
U.S. CONST. art. I, § 8, cl. 8.
51
Ng, supra note 49, at 465.
52
See id.
53
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 252 (1903).
54
See id.
14
Further, the fact that the current copyright regime is burdensome to Tweet authors alone
is irrelevant. The benefit to authors is merely an incentive to create the work; the intention of
copyright protection is to benefit the public.
The copyright law, like the patent statute, makes reward to the owner a secondary
consideration. . . . The sole interest of the United States and the primary object in
conferring the monopoly lie in the general benefits derived by the public from the
labors of authors. It is said that reward to the author or artists serves to induce
release to the public of the products of his creative genius.55
Thus, when enacting legislation, Congress must determine the optimum level of protection to
afford authors that will incentivize them to share their work with the public without
overextending the monopoly. Put simply, “[t]he granting of such exclusive rights, under the
proper terms and conditions, [must confer] a benefit upon the public that outweighs the evils of
the temporary monopoly.”56
Under Justice Holmes’s view, “money tweets” deserve protection if they are educational
or otherwise benefit society as judged by the public through commercial viability.57 Tweets
themselves generally have no commercial value: Twitter users do not pay to view Tweets and
most Tweet authors have no expectation of compensation for their work. Some celebrities are
compensated for authoring Tweets,58 but this compensation is not for the creation of the work
itself, but for an endorsement. Celebrities are paid by advertisers to endorse products or services,
not to benefit society. Further, these advertisers would likely encourage others to “retweet” and
55
Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (quoting United States v. Paramount
Pictures, 334 U.S. 131, 158 (1948) internal quotes omitted).
56
H.R. REP. NO. 60-2222, at 7 (1909).
57
See Bleistein, supra note 53.
58
Supra note 6.
15
otherwise reproduce and distribute the Tweet in an effort to reach a larger customer base. While
Twitter and celebrities are able to profit off of advertisements, generally a Tweet, standing alone,
has no commercial value. The public does not invest in the Tweet, thus voting that it does not
promote “progress.”
Even more significantly, Twitter users do not need to be incentivized through copyright
law to produce Tweets—even if there were “progress,” copyright protection would not serve to
“promote” it. Millions of Tweets are posted each day, all of whose authors have no reasonable
expectation of protecting the Tweet through copyright protection. When Congress passed the
most recent copyright statute in 1976, it did so in light of the competing interests of protecting
authors to a point that incentivized the flow of their work into the public domain, and the evil of
monopolization.60 Although Congress could not have made this analysis in the view of Twitter,
it made it in view of all works, present and past. And the fact that it is difficult for Twitter users
to find protection in the copyright system does not mean that the balancing of interest by
Congress is incorrect. There is no reason to accept the evils of monopolization if that evil will
not yield a greater benefit to the public through the availability of additional written work.
The purpose of the copyright regime is to “promote” the “progress” of useful arts. With a
few theoretical exceptions, even the “money tweets” fail to both promote and progress the arts.
Thus, it should be difficult to receive protection for Tweets.
V.
Conclusion
A perquisite to copyright protection in a Tweet requires that the Tweet be original—
independently created and minimally creative—and fixed in a tangible medium of expression.
60
See Ng, supra note 49, at 482-83 (noting that Congress decides “matters of copyright policy
that would set the appropriate balance of interests between copyright owners and the public”).
16
While all of the more than 400 million Tweets published daily are fixed in a tangible means, very
few rise to the requisite level of originality. Further, even if an author can secure copyright
protection in a Tweet, it is likely economically unpractical to enforce that right. Rather than
bending over backward for Twitter authors by amending current copyright laws, we must first
step back and ask ourselves why these authors should receive protection.
Tweets do not further the purpose of copyright law. First, they do not promote
“progress” in the arts: Tweets, standing alone, have no commercial value. Users do not pay to
see them and authors have no reasonable expectation of compensation. Further, protecting
Tweets does not “promote” the progress in the Arts: the evil of monopolizing Tweets greatly
outweighs the benefit of providing information to the public. Providing a monopoly to Tweet
authors in their work would yield only slight, if any, benefit to the public in that it would not
promote a greater dissemination of Tweets to the public. Twitter users continually publish
hundreds of millions of Tweets per day with no reasonable expectation of copyright protection.
Theoretically, “money tweets” may exists and theoretically these Tweets could be
commercially valuable and require protection before the author would agree to publish them.
However, in this extremely rare scenario, the current system does not prohibit the author from
seeking copyright protection. The vast majority of Tweets, however, should not fall within the
realm of copyright protection. Thus it should be highly unpractical for Tweet authors to seek the
benefit of copyright protection. Whether P. Diddy wants us to “[r]ise and grind” or Lil Wayne
would like to inform us that “Dedikatio 4 komin next month,” society simply does not care. And
neither should the legal system.
17
18