Can you copyright a tweet?

Gabriel J. Michael / gmichael at gwu dot edu

Back in January, I had a brief exchange on Twitter prompted by this news story. The gist is that A. O. Scott, film critic for The New York Times, posted a tweet about the film Inside Llewyn Davis. The film’s promoters took out a full page ad in the Times displaying the tweet (or more accurately, the last two sentences of the tweet).

The linked article’s discussion assumes that Scott “own[s] the copyright to his tweets,” but notes that by tweeting, Scott could be presumed to be granting an implied license for reuse of the tweet elsewhere.

But can you even copyright a tweet? I did some research and was unable to come up with a clear answer. There was some academic discussion of the issue, and occasional instances in which Twitter users claimed others were infringing their tweets, but I could not find a clear instance in which someone had actually registered a copyright in a tweet.

So, 7 months and $35 later, I have my answer: no, you cannot copyright a tweet.

That, at least, is what the registration specialist at the Copyright Office decided to send me in response to my attempt to register this tweet as a literary work entitled “Tweet #452″:

Monkey bar fallacy: a bad person using something makes it bad. E.g., users of monkey bars include: children, TERRORISTS #tor

Of course, the rejection of this particular tweet does not imply that no tweet can be copyrighted. Perhaps the registration specialist did not feel my tweet was valuable or creative enough, and thus did not pass the (very low) threshold of originality.

This makes me wonder whether short poems like haikus are eligible for copyright protection. Browsing the Copyright Office’s registration database, I can find a number of registered literary works labeled “haikus” that are no longer than one page. Perhaps I would have had more luck if I had instead tweeted a haiku:

Monkey bar fallacy:
A bad person using something
Makes it bad.

(For sticklers, yes, I know it’s not 5-7-5, but it is 17 syllables.)

Ultimately, I wonder if the Copyright Office applies more scrutiny to short literary works than it does to photographs. In the U.S., we work under the assumption that every photograph taken by a human being is copyrighted. But I take a lot of photos, and many of them take far less time, effort, and creativity to compose than a tweet. Here’s an example:

Greek YogurtOther countries have found that some photographs simply aren’t creative enough to warrant copyright protection. Wikipedia has a brief summary and link to the German text of a Swiss case in which a reporter’s photograph of a man holding record books was ruled ineligible for copyright.

It would be a fun, albeit expensive, experiment to try and register a variety of liminal works: handfuls of sentences, short quines, run of the mill photographs, “sculptures” made of a few Lego pieces, etc. I would contest the office’s decision about my tweet, but I don’t want to pay $250 out of pocket to do so, and I also don’t really want to write a funding proposal to try and convince someone else to give me the money.

To wrap up this little experiment, the Copyright Office’s online registration process allows registrants to submit comments with their registrations. I submitted the following text, although I have no way of knowing whether it was ever read:

In Ashleigh Brilliant v. W.B. Productions, Inc. (Civ. No. 79-1893-MBM, S.D. Cal Oct. 22, 1979), a U.S. District Court found that Brilliant’s copyrights on three epigrams were valid and enforceable. The epigrams were 12, 15, and 10 words respectively. Each was a single sentence, lacking rhyme or meter; rather, their originality consists of their pithiness. Tweet #452′s originality is similar: using 20 words and two sentences, it exposes the logical fallacy inherent in blaming tools, using humor and topical examples to communicate the point.

Circular 34 states that “copyright law does not protect names, titles, or short phrases or expressions.” Tweet #452 is clearly not a name or title, leaving only the question of whether it is a short phrase or short expression. The Oxford English Dictionary defines a phrase as “a small group or collocation of words expressing a single notion, or entering with some degree of unity into the structure of a sentence; a common or idiomatic expression.” Expression is similarly defined as “A word, phrase, or form of speech.”

Tweet #452 cannot be classified as either a “phrase” or “expression,” since it contain two complete sentences (i.e., two subject-verb pairs). Thus, Tweet #452 does not fall within the scope of Circular 34. Even if Tweet #452 were considered a phrase or expression, phrases or expressions as such are not necessarily ineligible for copyright, since Circular 34 specifies that only “short phrases or expressions” are ineligible for copyright, thereby suggesting that longer phrases or expressions are eligible.

Update (August 4): I’ve had a few requests to post the correspondence I received from the Copyright Office, so here it is.

This post and the included image are licensed CC BY-SA 4.0, and may be shared and reposted with attribution. When reposting, please include a link back to this page, which will contain the most up-to-date version.

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About Gabriel

Ph.D. in political science. Postdoc and resident fellow at Yale Law School's Information Society Project. Tech geek. Mechanically inclined. I study the politics of intellectual property.
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One Response to Can you copyright a tweet?

  1. Pingback: Copyright Office Rejected My Attempt To Copyright A Tweet | Technology

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