With 75 million users of Twitter worldwide, it is the fastest growing form of communication. Twitter receives approximately 55 million tweets every day. Businesses are embracing Twitter to connect with their target audiences and relay marketing information. Even the U.S. Government is interested in maintaining tweets. The Library of Congress recently announced that it will launch a program to digitally archive every public Twitter posting since Twitter's launch in 2006. The purpose of the program is to document and archive important or notable tweets, such as President Barack Obama's tweet following his victory in the 2008 presidential election. The growing popularity of Twitter's social networking program is raising new and interesting questions concerning the intellectual property rights of Twitter users, particularly concerning whether a Twitter user can obtain copyright protection in a particular tweet. As with any communication, some of this material may be original work...but does copyright law apply to protect the various tweets posted by Twitter users? As is generally the case, the legal answer is: "It depends."

Obtaining copyright protection for a tweet will be rather difficult. In fact, the reality is that obtaining a copyright registration for a typica] tweet is almost impossible. However, setting aside the difficulty of the matter, it may be possible for some novel tweets to obtain copyright protection. Knowing the difference may prevent unintentional infringement or provide the basis for enforcement measures.

Misconceptions abound when it comes to social networking sites such as Twitter. Users may believe their postings are not eligible for copyright protection simply because their musings are "too short" in length. Others mistakenly assume that because all tweets on Twitter are the property of the person who posted them, per Twitter's terms of service, these postings are automatically protectable under copyright law.

In fact, neither of these presumptions is correct. Whether a posting on a social networking Web site is eligible for copyright protection will depend more upon the creativity of the posting than any minimum length and there certainly is no "automatic" copyright protection for these tweets.

A copyright provides legal protection that guards an author's interest in an "original" work that has been "fixed in a tangible medium." Unique to Twitter, users can only post updates with up to 140 characters. As a result, while tweets are fixed in a tangible medium because they can be visually perceived, the more difficult question is whether they are sufficiently original to warrant copyright protection.

The "de minimis doctrine" discourages copyright protection if the claimed materials fail to embody a minimal level of creative authorship. While the creativity bar is generally low, the author must at least demonstrate some creativity for any resulting work, as the Code of Federal Regulations provides that "words and short phrases such as names, titles, and slogans" are "not subject to copyright protection and applications for registration of such works cannot be entertained" by the Copyright Office.

For Twitter users, these rules create a very interesting challenge. In 140 characters or less, what is sufficiently original to merit copyright protection?  

At first glance, the term "short phrases" would seem to immediately exclude Twitter postings from the realm of copyright law. However, there is no absolute rule requiring a minimum number of words to create protectable matter. Instead, the de minimis doctrine is equivalent to a sliding scale. Generally, the shorter the material submitted, the greater the originality required to obtain copyright protection.

There are many familiar short phrases and/or works found to be potentially protectable as copyrights and not barred by the de minimis doctrine, including: "E.T. Phone Home;" "You Are Special Today;" "SUPERCALIFRAGILISTICEXPIALIDOCIOUS;" and various other short poems and haikus registered with the Copyright Office

However, for each of the examples above, there are many more examples where short works were not found by the courts to be protectable as copyrights, including: "You Got the Right One, Uh-Huh;" "Building Bridges to the Future;" and "Eat Your Art Out."

In examining these results, it is readily apparent that the few "short phrases" found to be potentially protectable under copyright law were fairly original, as compared to those not found to be protectable. Further, the number of examples of protectable short phrases are miniscule, as compared to the exponentially larger set of short phrases excluded under the de minimis doctrine.

Purely "factual" information or "news of the day" is generally not eligible for copyright protection, which presents another bar to copyrighting tweets. As a general rule, aside from some unique arrangement or presentation of the facts, or under other limited circumstances, the underlying facts themselves are generally not subject to copyright protection.

When closely analyzed, probably as much as 99 percent of the information posted on Twitter is purely factual in nature or could be considered the "news of the day." Whether it is a celebrity or athlete tweeting about what they are doing, or a company announcing a new product, these postings are factual. While sometimes amusing they are largely unoriginal, meaning that they are probably not eligible for copyright protection.

Three key areas of copyright law - idea, expression and merger - have proven difficult to embrace and as a result, many legal practitioners often misapply them. The idea-expression dichotomy is best summed up in this quote from an early case before the Supreme Court in Holmes v. Hurst, 174 U.S. 82 (1899):[

"The right thus secured by the copyright act is not a right to the use of certain words, because they are the common property of the human race, and are as little susceptible of private appropriation as air or sunlight; nor is it the right to ideas alone, since in the absence of means of communicating them they are of value to no one but the author. But the right is to that arrangement of words which the author has selected to express his ideas..."

While the arrangement of words by an author may be subject to copyright protection, the idea behind the words is not eligible for copyright protection. There are some instances where the idea and the expression "merge" because there are only so many ways to express a particular idea. The "merger doctrine" is best described as follows in Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (1971):

"When the 'idea' and its 'expression' are...inseparable, copying the 'expression' will not be barred, since protecting the 'expression' in such circumstances would confer a monopoly of the 'idea' upon the copyright owner free of the conditions and limitations imposed by patent law."

A good example of the application of the merger doctrine, and relevant to Twitter posts, is the expression of facts. For facts, there are only so many different ways that people can describe what they are doing or any other benign observation. Accordingly, most of these statements, including tweets, are also likely barred from copyright protection by the merger doctrine.

When determining whether a tweet is copyrightable, the tweets that have the best chance of obtaining copyright protection are those that are high on originality and yet low on character count. A short poem, a haiku or other very short but highly original and creative play on words, will be the most likely to succeed. However, the majority of Twitter postings are simply too unoriginal to lead to copyright protection.  

Reprinted and/or posted with the permission of Daily Journal Corp. (2010).