Twitter and Fair Use

Are Twitter broadcasts protected under US copyright law?  This becomes an interesting question as social networking moves into the business world.

Attorney Kyle-Beth Hilfer has written an excellent article on the subject; recommended reading for anyone whose business involves social networking on sites such as LinkedIn (my favorite), Facebook or Twitter. Her article is here.

The short answer to whether Tweets are given copyright protection is “probably no.” 

First, as Ms. Hilfer explains, copyright law protects only “original expression.” It is hard (though not impossible) to find much original expression in short Tweets–most are reordering of words, short summaries of news events or mundane recital of facts (e.g., “I’m going to the store now.”)  Ms. Hilfer quotes an explanation from Nimmer on Copyrights about how the length of an expression affects its copyright protectability:

The shorter the expression, the harder it is to establish originality and creativity… There is a reciprocal relationship between creativity and independent effort. The smaller the effort (e.g., two words) the greater must be the degree of creativity in order to claim copyright protection. [citation omitted]

Second, copyright law allows “fair use” copying of someone else’s original work, under certain conditions.  Most Twitter broadcasts probably qualify as fair use. 

Generally, commentary on an underlying work is fair use, as long as the use does not cross the line from “commentary” to commercial misappropriation. 

For example, a Nation Magazine article about Pres. Gerald Ford’s memoirs crossed the line when the magazine exploited the headline value of President Ford’s memoirs before his book was published, thereby misappropriating the commercial value of the news event of the book release. (Harper & Row v. Nation Enterprises)

By contrast, the rap group 2 Live Crew’s parody song of Roy Orbison’s 1964 hit song, “Oh, Pretty Woman” did not cross the line from commentary to misappropriation, where the commercial value of the Orbison song remained intact, and the 2 Live Crew song was social parody on the dismal life of “nameless streetwalkers” glamorized in the Orbison song. (Campbell v. Acuff-Rose Music)

In today’s networked world, commercial music mashups are probably not fair use, while Twitter broadcasts probably are fair use.

A great number of Twitter broadcasts seem to be commentary on other events.   These Twitter broadcasts probably qualify as fair use commentary of another author’s work, just as 2 Live Crew’s rap parody of “Oh, Pretty Woman” qualified as social commentary fair use.  

Another great number of Twitter broadcasts are mundane announcements of personal comings and goings.  Under the second factor determining fair use (the value of the materials used), this category of Tweets probably has little inherent commercial value.  Therefore, rebroadcast of these Tweets might be fair use for lack of inherent commercial value.

Some Twitter broadcasts might have actual commercial value—such as the Tweets of celebrities.  A celebrity might argue that his or Tweets have inherent commercial value.  A rebroadcast of celebrity Tweets or compilation of Tweets might fail the fair use test if the rebroadcast is for commercial purposes and “market harm” (the fourth fair use factor) can be shown by the celebrity.

There are other reasons why Twitter broadcasts might not be copyright protected, such as the limitations of terms of use in the Twitter license agreement.  Ms. Hilfer’s article discusses these issues in some detail.

In today’s networked world, one should expect that Twitter broadcasts are not copyright protected for a number of possible reasons: (a) lack of original expression, (b) the content is social commentary, (c) the content lacks inherent value, or (d) licensing restrictions.