Twitteright: finding protection in 140 characters or less.

• Author: North, Stephanie Teebagy

"The act of publishing on Twitter is so friction-free--a few keystrokes and hit send--that you can forget that others are out there listening." (1)

1. The Rise of the 140 Phenomenon

   Nearly every day people around the globe are posting millions and millions of tiny statements called "Tweets" online. (2) To be more precise, as of January 2011, nearly 200 million accounts had been registered on Twitter and over 130 million tweets were being posted each day. (3) Twitter updates are comprised of short and sweet statements made up of no more than 140 characters, encompassing everything from the mundane, like sports statistics, to the catastrophic, like the

   January 2009 earthquake in Haiti, (4) to the historic, like the 2011 revolution in Egypt. (5) Since its inception, users have integrated Twitter into everything from presidential debates (6) to daily newscasts where viewers use the site to participate in live discussions. (7) In January 2009, Twitter even made the history books when President Barack Obama became the first President in United States history to tweet. (8)

   As the popularity of the site grows, so does the question of whether the statements posted by users are protectable intellectual property or whether users posting on the site are left out in the cold, without protection, under the current United States copyright statute. (9) This paper analyzes the ever-more-popular tweets under the framework of current U.S. copyright law and suggests protection is likely in some circumstances. Part II analyzes the foundations of copyright law in the United States from its Constitutional origins to the evolution of the originality standard in case law. While the courts traditionally held that only minimal originality is needed to protect a work of authorship, more recent decisions have begun calling for a higher level of creativity.

   Part III analyzes how the courts treat short phrases, in particular, the protection of haikus, despite the Copyright Office's refusal to register short phrases or slogans. While courts traditionally held that short phrases, titles and slogans are generally not copyrightable content, the courts have conceded that while short, haikus are potentially protectable original works of authorship. This is far from a clear issue and one that could have a major impact on the interpretation of micro-blogs.

   Part IV explores Twitter itself as well as analyzes its importance as an emerging technology in Web 2.0. Following that, Part V applies the current copyright tenets to the Twitter structure. While the majority of tweets are most likely non-copyrightable content, there is growing sentiment that some tweets, depending on their structure and content, are in fact protectable. Finally, the author posits in Part VI how Twitter may find protection and why doing so is critical to continuing protection in a Web 2.0 world.

2. A Constitutional Right

   The debate facing sites like Twitter is one based on some of the most elemental foundations of copyright law. (10) While the thresholds and requirements for protection under the current regime are frequently applied to traditional works, application to micro-blogs will bring copyright law into a new era. (11) To understand how this application may proceed, an overview of current copyright law is essential.

   Congress derived the power to create the copyright code in Article I, Section 8 of the United States Constitution. (12) Specifically, the Constitution granted the legislature the right to "promote the Progress of Science and useful Arts." (13) Known as the intellectual property clause, scholars have long stated that copyright law should stick to this original tenet and provide protection only so that it benefits society and social welfare. (14) As one critic described, "[s]ociety has no interest in protecting unoriginal works that effect no advancements in art, literature, science, education, or other useful endeavors." (15)

   While the copyright code is of statutory creation, the courts have played a major role in promulgating the view that copyright is for the public good. (16) In Mazer v. Stein, 347 U.S. 201 (1954), the Court reinforced the idea that the purpose of copyright is to promote the arts and thereby promote the public good. (17) The Mazer Court, in fact, said that the reward to the owner is a "secondary consideration." (18) More recently, the Court in Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984), reiterated this point, stating that copyright law is not intended to provide private privileges, but rather to promote the public good. (19)

3. The Law in Thresholds

   At its most elemental level, copyright in the United States is the right of authorship. (20) The current United States copyright code provides protection for "original works of authorship fixed in any tangible medium of expression ... from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (21) To understand how the copyright code treats Web 2.0 authorship, it is important to understand the threshold requirements for copyright protection.

   1. An Intellectual Fixation

      Perhaps the easiest requirement, and most easily understood, is fixation. The Copyright Act leaves wide berth for what qualifies as fixed. (22) It can be a novel, or something only fixed for a few moments, such as creating a copy of a program on your computer, which is not stored when the computer is turned off. (23) For example, in MAI Sys. Corp. v. Peak Computer, Inc., the court found that software that is briefly copied in a computer's RAM and then deleted when a computer is turned off, was sufficiently fixed. (24) This wide scope provides the courts with the flexibility to find protection for a wide range of works. (25)

      In addition to singular works, compilations fixed in a tangible medium of expression are also copyrightable. (26) Copyright in a compilation extends only to the original material contributed by the author, and not other copyrighted material compiled, and likely licensed, for a compilation. (27) This means that while it does receive protection, the protection granted to a compilation is far thinner than that granted to a singular creative work. (28)

   2. Make It Original

      Under the MAI Sys. holding, it appears fixation would not to be an issue when it comes to posting on sites like Twitter given that content becomes fixed on these sites at the time a user posts it. (29) However, critics and courts alike continue to debate the originality requirement for authorship. (30) In an early interpretation, the Court in United States v. Steffens (Trademark Cases), 100 U.S. 82 (1879), described originality as a combination of novelty, invention, discovery and the work of the author's own mind. (31) In other words, the court viewed originality as the product of something novel done by the author. (32) While courts formerly viewed authorship mainly in the context of the written word, in 1884 the Supreme Court expanded the view to include any creative work. (33) In that case, the Court held that a photograph of Oscar Wilde, taken by Napoleon Sarony, was an original work of authorship, because when taking the photo, Sarony conceived, manipulated, and captured the scene itself. (34)

      While the views of authorship evolved, so did the threshold for what is considered original. (35) For many years, only a low standard of originality was necessary to find authorship. (36) In Bleistein v. Donaldson Lithographing Co., the Court clarified that when ruling on a work's originality, judges are not to pass aesthetic determinations on works of art. (37) Because the Court said it is not up to the justices to judge artistic merit, they instead must find a modicum of originality in the work in order to afford it copyright protection. (38) Perhaps this decision, more than any other, has had the greatest impact in lessening the courts' focus on the constitutional guidelines of promoting the arts and sciences. (39) This language, once thought to protect creative advances, has now seemed to bow down to a broader scope of protection for any work that is even mildly original. (40)

      In recent years, the courts have begun to redefine originality, which will likely have a larger impact on how originality will be treated in the Web 2.0 realm. (41) In a landmark decision, the Court in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., appeared to set a higher standard of originality when it found that a telephone directory could not be copyrighted. (42) While facts have never been copyrightable, the Court here determined that in some circumstances even the expression of those facts will not be protectable, bucking a long-held notion of copyright protection. (43) Instead, the Court stated that something more is necessary to be original. (44) Despite these steps forward, the failure of the Feist Court was to raise the bar for originality without directing future courts on how to implement the heightened originality standard. (45) The Court claimed it was not seeking a new creation entirely, but instead said there must be a "minimal creative spark." (46) However it will be up to later courts to determine exactly what will qualify as original. (47)

   3. The Length Debate

      In addition to meeting an originality threshold, there is also essentially a length threshold for written works. (48) The current copyright code states that "names, titles, and other short phrases" or expressions are not copyrightable. (49) In numerous cases, the court has held that plaintiffs have no grounds for infringement when only a short phrase is at issue. (50) Specifically, in Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., the court denied copyright protection for the serving directions on Sara Lee's labels, stating "... it must contain an appreciable amount of original text or pictorial material and brand names, trade names, slogans and other short phrases cannot be...