Today the New York Times has an interesting story about Frank Ocean and the copyrightability of Tweets that I’d like to dig into a little bit further.

The story goes that Frank Ocean performed at the Panorama Music Festival in New York City on July 28, 2017. At the show, he wore a T-shit that read: “Why be racist, sexist, homophobic, or transphobic when you could just be quiet?” It didn’t take long for people to find that this shirt is being produced by a small t-shirt company Green Box Shop that sells a number of shirts with different messages on them. But as it turns out, this phrase was not original to either Frank Ocean or Green Box Shop. Instead, it comes from a tweet from 2015 made by Brandon Male. When Male found out that his tweet had become a t-shirt, he contacted the owner of the company, claiming that he should be properly compensated for the use of his intellectual property — the tweet.

As the article points out but doesn’t go into depth on, however there is a legitimate question whether Male’s tweet is protected by the law at all. Under copyright, it’s well established that things like words, titles, and short phrases are not protected by the law. Indeed, the Copyright Office even has a circular entitled Copyright Protection Not Available for Names, Titles, or Short Phrases. Moreover, the Compendium of Copyright Office Practices, the manual that the Copyright Office follows when making copyrightability determinations, expands on this, explaining that “words and short phrases, such as names, titles, and slogans, are not copyrightable because they contain a de minimis amount of authorship.” Since all tweets are short phrases, due to the 140-character limit, this would seem to mean that they are not the subject of copyright protection.

Nevertheless, despite the seemingly determinative statements from the Copyright Office, this seems like a pretty narrow understanding of copyright as it applies to tweets. Certainly, some short phrases seem to be creative, original, and have enough substance to qualify for copyright protection. Consider something like a haiku. If you’re unfamiliar, haiku are Japanese poems that follow a 5 syllables/7 syllables/5 syllables pattern. For example:

You don’t need an “s”
to make a plural haiku
trust me on this one.

Like tweets, haiku are necessarily short. In fact, mine is only 65 characters, and could easily be in a tweet. But like any poem, haiku are artistic works that seems to merit copyright protection. If the purpose of copyright is to support the progress of the arts, why would the law want to deprive a certain kind of artists the ability to protect his/her works? This seems foolish.

As such, maybe tweets, too, should qualify for copyright protection, even if they are “short phrases.” Indeed, you don’t have to imagine artists using Twitter as their medium for expression. The easiest example might be comedians, who use Twitter to publish jokes. It seems hard to argue that a comedian couldn’t copyright jokes. After all, if we remember the economic justification to copyright — that is, the idea that we offer authors the ability to protect and exploit their works for money as an incentive for them to create — then short jokes on Twitter deserve copyright. Certainly comedians use their jokes to make money and would be unable to do so if they were unable to profit from them. What is more, people are increasingly publishing tweetstorms, that, when taken together, seem even more obviously deserving of copyright protection. So, we can’t simply say that tweets can’t be protected just because they are short.

Of course, I’m not the first person to think that maybe tweets deserve copyright protection. Indeed, a number of people have considered the same question. WIPO, the World Intellectual Property Organization, has an interesting post on the matter that points out some of the practical problems with copyright over tweets. And as many of these posts mention, it argues that some tweets deserve copyright protection, but probably not all of them.

So, returning to the tweet that started this whole post, while we can’t say for certain that Male’s tweet is copyrighted, at the very least it might be. And perhaps its popularity as a t-shirt proves its value as an original and creative work, despite its brevity. It’s certainly not clear, but Male has a good argument that his tweet deserves protection.

As I’ve said before, I think one lesson we can draw from this is that copyright law desperately needs to be updated. The law is over 40 years old and doesn’t make sense for all the ways that people create and use works today. The law needs to evolve to meet the needs of creators and users for the 21st century.

 

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