A few weeks back, someone pointed me to a Twitter message where one Twitter user was (jokingly) accusing another of copyright infringement for repeating a message. While the situation was amusing, you knew it was only a matter of time until the question became more serious. Mark Cuban put up a blog post this weekend asking about the copyrightability of Twitter messages
. His question revolves around whether or not it's copyright infringement for someone like ESPN to repeat what he wrote in a Twitter message, which he would have preferred they didn't quote.
I'm certainly no copyright lawyer -- so perhaps some could chime in in the comments -- but it seems like there would be two issues here. The first is whether or not the content is covered by copyright -- and, for most
messages the answer would probably be yes (there would need to be some sort of creative element to the messages to make that happen, so a simple "hi" or "thanks" or whatever might not cut it). But, the more important question then would be whether or not ESPN could quote the Twitter message. And, there, the answer is almost certainly, yes, they could, just as they could quote something you wrote in a blog post.
If you ran down the fair use test, it's difficult to see how a public Twitter message wouldn't easily qualify. If it's ESPN, it would
be for commercial use, but not in the sense of "selling" the content. Plus, it's for journalistic reasons, which is often given a fair use pass. Second is the nature of the copyrighted work -- which, being a Twitter message, I would guess most judges would assume it's expected that the content can (or even should) be repeated. The third test fails, since it would be the entire message, but the fourth test, on "the effect on the potential market for the copyrighted work" would almost certainly point towards fair use. Since the four factors aren't weighted equally, I think the only clear "failure" is the weakest and least important of the four tests (how much of the content was used -- which is way outweighed by the other factors), it's hard to see how this isn't a perfectly reasonable use.
But, of course, with copyright designed for a world before everyone had a printing press, we're going to come across more such questions in the future -- and I'm sure there will be a few lawsuits along the way.
For example... while it's not a copyright lawsuit, Courtney Love has been sued for libel
due to her Twitter messages. Apparently, she's been Tweeting in anger against her former fashion designer -- Dawn Simorangkir -- and Simorangkir is now suing for defamation. The messages themselves may prove to be defamatory (assuming they're not true), calling the woman:
a "nasty, lying, hosebag thief"; having "a history of dealing cocaine"; having "lost all custody of her child"; and, being guilty of "assault and burglary"
There's also the message claiming that the designer would be "hunted til your [sic] dead," which seems more like a threat than libelous. Of course, one could argue that the legal filing by the designer is also potentially libelous, stating:
"Whether caused by drug-induced psychosis, a warped understanding of reality, or the belief that money and fame allow her to disregard the law, Love has embarked on what is nothing short of an obsessive and delusional crusade to destroy Simorangkir's reputation and her livelihood."
I would imagine that, if Courtney Love were not in a drug-induced psychosis, she might find that claim objectionable.
Still, you have to wonder if there were a better way to handle this. For example, filing the lawsuit seems to call more
attention to the falling out between the two, perhaps leading many more people who might be interested in Simorangkir's work to think twice. While Love, as a celebrity, does have a certain reach, it seems like Simorangkir could better respond just by laying out the facts of the situation and telling her side of the story in a calm and clear manner, which compared to some rantings on Twitter would probably give people a good counterbalance without needing to involve the courts.
Either way, as these two stories demonstrate, we're in for a long series of lawsuits and legal threats having to do with Twitter messages.