Users of Twitter can rest assured that they own their tweets, even if not every tweet can be owned.
As Jeffrey Johnson, a partner at New York-based law firm Pryor Cashman, explained in a phone interview, "The essence of copyright law is originality. The smaller the piece, the less likely it is to be truly original."
"One of the standards they look at is whether you can express the idea in a different way," he said. "If it's impossible to express the idea in a different way, the likelihood that it's copyrightable content is much lower."
Johnson points to Feist v. Rural, a case from the early nineties in which the plaintiff, Rural Telephone Service Co., argued unsuccessfully that its telephone listings should be protected under copyright.
But tweets, he says, approach the point of being copyrightable.
"I think there's no doubt that when you're talking about 140 characters, you're going into a range where they are probably a lot of things that are copyrightable," he says.
A 2005 legal paper titled "Size Matters (or Should) in Copyright Law," by Yeshiva University law professor Justin Hughes, observes that there has been increasing legal pressure to confer copyright protection on "microworks" and argues that the size, rather than originality, should matter more in determining whether something can be copyrighted.
"When liability for copyright infringement boils down to copying a name, a couple of choice phrases, a slogan, or a small subset of numeric evaluations, copyright law is being dragged by clever lawyers into dark alleys where it should not go," Hughes writes. "These dark alleys threaten some of the most flourishing areas of recombinant culture -- software programming, collage art, the cutting and pasting of snippets which is a wonder of digitization, criticism which requires significant quotation from the target of criticism -- whether by a Ph.D. candidate or a blogger."
Johnson suggests a more accurate way to word the Twitter Terms of Service might be, "You own whatever copyright you have, if any."
But Twitter's assertion that users own their content obscures the fact that Twitter's rights under its Terms of Service allow the company to do pretty much anything a content owner could do. For example, if Twitter wanted to publish a book featuring your tweets, it could.
In advising clients about securing rights for user-generated content, Johnson says that in most cases, non-exclusive rights -- that's what Twitter claims -- are enough for typical business uses.
For Twitter users, perhaps it will be enough simply to say, "I own my tweets," whether or not those tweets can be owned under the law.
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