When anyone creates an “original work” and fixes it in a “tangible medium,” then the material is protected by copyright. Originality and fixation — that is it. Your suggestion above that “A tweet is not a literary work” is flat wrong, and the fact that you used the following example is ridiculous: If I tweet, “Everybody, clap your hands!” do you think that is protected by copyright? Wrong. A court has already answered that question – it’s not copyrightable.” suggesting that it is too “common.” [NOTE: Really? What Court? Got a cite for me?]

The only legal threshold of the type you allude to regarding common-ness is that of originality, and the threshold is remarkably low. See, for example, Key Publ’ns, Inc. v. Chinatown Today Publ’g Enter., Inc., 945 F.2d 509 (2d Cir. 1991), where the Court held that that yellow page listings in a telephone directory were original for copyright purposes. Yes, yellow page listings. Original.

So if I sit down to “tweet” and type what is on my mind, it will be almost certainly be sufficiently original to meet the minimal legal threshold for originality. Note that the fact that a phrase has been written before does NOT mean that the second writer is unable to claim copyright protection.

You wrote: “It’s just too common (even though you may not have ever heard anyone say it), and copyright protection would not extend to such a phrase. Phrases are tricky – some could be protected, but most are not.”

This, too, reflects a profound misunderstanding of copyright law. An original phrase which an author fixes in a tangible medium is capable of being protected by copyright, even if another author wrote it before. Of course, if I am looking at someone else’s work and I type the same thing, then I may be a copyright infringer, but I will still be creating material capable of being protected by copyright. In fact, independent creation of the identical material would be an absolute defense to a copyright infringement claim and both parties would have copyright rights in his/her respective work.

You then went on to write:

“Much has been said about comparing tweets to blog posts, but the same applies to a blog post. the greater the “substance” of the post, the higher likelihood of copyright protection. However, simply because the copyright act states that copyright protection may protect website content, blogs, articles, etc., does not mean it does protect such materials. There are various other tests that must be applied.”

Um, actually, there are not “various other tests.” If the material is original and fixed in a tangible medium, that’s it.

Then, you go on to make a further fool of yourself by saying this:

“All in all, everyone on Twitter seems to somehow believe they own the content they post. The simple fact is that you don’t. It’s public domain, which means Fair Use doesn’t have any impact. It’s free for the taking – commercial or non-commercial.”

It actually turns out to be very, very difficult to put something into the “public domain” even when you are trying to do so, but certainly typing something at Twitter won’t do it.

And you cement your ignorance of copyright by writing this:

“Even still, to actually accomplish anything with your false belief of copyright protection, you would need to register your work before bringing an action. Good luck – the copyright office will not register your tweet, because it’s not copyrightable subject matter. That would foreclose all your potential arguments in the discussion above.”

The technical requirement of registering to bring an action is a red herring (and registering can be done right before you decide to sue, long after you publish the work, though you give up some statutory rights in that example) that is unrelated to the question of copyrightability-something the Copyright Office makes absolutely clear.

As to your example, I’d bet you ten times the cost of registration that the copyright office will in fact, register a tweet — in part, because the copyright office does precious, precious little to review applications for protection.

Bottom line, you are grossly mis-informed and spouting nonsense. Please stop.

If tweets containing fact or opinion are copyrighted, then so are quotes and simple facts of paraphrase, like “Mark Cuban is wondering if he can exert copyright over his tweets.” Oops, I’m violating copyright! That fact is yours!

There are a million things wrong with even wondering about this subject. And while some big content types would salivate at the idea of owning and controlling quotes, if our society goes that way we are in serious, serious trouble. Goodbye, reporting. Goodbye, opinion and commentary.

However, I would love to know people’s thoughts on this:

http://ninabarry.com/404/?page_id=22

Fair use or Twitter copyright infringment?