Copyright Office Rejected My Attempt To Copyright A Tweet

from the a-bit-of-data dept

Mon, Aug 4th 2014 10:59am — Gabriel J. Michael

Back in January, I had a brief exchange on Twitter prompted by this news story. The gist is that A. O. Scott, film critic for The New York Times, posted a tweet about the film Inside Llewyn Davis. The film's promoters took out a full page ad in the Times displaying the tweet (or more accurately, the last two sentences of the tweet).

The linked article's discussion assumes that Scott "own[s] the copyright to his tweets," but notes that by tweeting, Scott could be presumed to be granting an implied license for reuse of the tweet elsewhere.

But can you even copyright a tweet? I did some research and was unable to come up with a clear answer. There was some academic discussion of the issue, and occasional instances in which Twitter users claimed others were infringing their tweets, but I could not find a clear instance in which someone had actually registered a copyright in a tweet.

So, 7 months and $35 later, I have my answer: no, you cannot copyright a tweet.

That, at least, is what the registration specialist at the Copyright Office decided to send me in response to my attempt to register this tweet as a literary work entitled "Tweet #452″:

Monkey bar fallacy: a bad person using something makes it bad. E.g., users of monkey bars include: children, TERRORISTS #tor

Of course, the rejection of this particular tweet does not imply that no tweet can be copyrighted. Perhaps the registration specialist did not feel my tweet was valuable or creative enough, and thus did not pass the (very low) threshold of originality.

This makes me wonder whether short poems like haikus are eligible for copyright protection. Browsing the Copyright Office's registration database, I can find a number of registered literary works labeled "haikus" that are no longer than one page. Perhaps I would have had more luck if I had instead tweeted a haiku:

Monkey bar fallacy:
A bad person using something
Makes it bad.

(For sticklers, yes, I know it's not 5-7-5, but it is 17 syllables.)

Ultimately, I wonder if the Copyright Office applies more scrutiny to short literary works than it does to photographs. In the U.S., we work under the assumption that every photograph taken by a human being is copyrighted. But I take a lot of photos, and many of them take far less time, effort, and creativity to compose than a tweet. Here's an example:

Other countries have found that some photographs simply aren't creative enough to warrant copyright protection. Wikipedia has a brief summary and link to the German text of a Swiss case in which a reporter's photograph of a man holding record books was ruled ineligible for copyright.

It would be a fun, albeit expensive, experiment to try and register a variety of liminal works: handfuls of sentences, short quines, run of the mill photographs, "sculptures" made of a few Lego pieces, etc. I would contest the office's decision about my tweet, but I don't want to pay $250 out of pocket to do so, and I also don't really want to write a funding proposal to try and convince someone else to give me the money.

To wrap up this little experiment, the Copyright Office's online registration process allows registrants to submit comments with their registrations. I submitted the following text, although I have no way of knowing whether it was ever read:

In Ashleigh Brilliant v. W.B. Productions, Inc. (Civ. No. 79-1893-MBM, S.D. Cal Oct. 22, 1979), a U.S. District Court found that Brilliant's copyrights on three epigrams were valid and enforceable. The epigrams were 12, 15, and 10 words respectively. Each was a single sentence, lacking rhyme or meter; rather, their originality consists of their pithiness. Tweet #452's originality is similar: using 20 words and two sentences, it exposes the logical fallacy inherent in blaming tools, using humor and topical examples to communicate the point.

Circular 34 states that "copyright law does not protect names, titles, or short phrases or expressions." Tweet #452 is clearly not a name or title, leaving only the question of whether it is a short phrase or short expression. The Oxford English Dictionary defines a phrase as "a small group or collocation of words expressing a single notion, or entering with some degree of unity into the structure of a sentence; a common or idiomatic expression." Expression is similarly defined as "A word, phrase, or form of speech."

Tweet #452 cannot be classified as either a "phrase" or "expression," since it contain two complete sentences (i.e., two subject-verb pairs). Thus, Tweet #452 does not fall within the scope of Circular 34. Even if Tweet #452 were considered a phrase or expression, phrases or expressions as such are not necessarily ineligible for copyright, since Circular 34 specifies that only "short phrases or expressions" are ineligible for copyright, thereby suggesting that longer phrases or expressions are eligible.

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Filed Under: copyright, registration, tweet

32 Comments

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Mason Wheeler (profile), 4 Aug 2014 @ 11:06am

Monkey Bar Fallacy. Nice one. I knew that concept under the name Hitler Ate Sugar.
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Mike Raffety (profile), 4 Aug 2014 @ 11:12am

Copyright in photographs?
You can expect to be served shortly with papers from Kirkland over trademark infringement by posting that photo, clearly implying that Kirkland endorses Techdirt.
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Michael, 4 Aug 2014 @ 11:14am

Re: Copyright in photographs?
That's nothing.

Please note the WHITE BACKGROUND.

Amazon's lawyers are filing as we speak.
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Anonymous Coward, 4 Aug 2014 @ 11:20am

Here's why you failed...
Although you included the $35 registration fee. You didn't include the lobbying fees to members of Congress that are required in order to get the government to give you what you wanted.
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Violynne (profile), 4 Aug 2014 @ 11:21am

Wait a second. I thought copyright law automatically granted us a copyright on our works? How is it the office can refuse any of it?

My goodness, copyright law sucks.
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Anonymous Coward, 4 Aug 2014 @ 11:22am

Re: Re: Copyright in photographs?
Amazon's patent is requires a seemless background.
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Gabriel J. Michael (profile), 4 Aug 2014 @ 11:32am

Re: Copyright in photographs?
FWIW, I actually took that photo to use as a lecture example of how United States law doesn't protect geographical indications - which is why you can have domestic "Greek" yogurt where the only thing "Greek" are the blue columns printed on the container.

I did think about the copyright implications of the photo, but I concluded that there's no copyrightable expression on the yogurt container.
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Gabriel J. Michael (profile), 4 Aug 2014 @ 11:34am

Re:
Yes, copyright is automatic. However, by registering, you have presumptive proof of ownership, and you are entitled to statutory damages and other benefits.

Also, in cases like my tweet, registration can serve as proof that there is copyrightable material at issue. Of course, the registration could be voided if it went to court and the court found otherwise.
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Anonymous Coward, 4 Aug 2014 @ 11:45am

Re:
Interesting tidbit about photography and automatic copyright:

When the Copyright Act of 1976 was passed, which made those copyrights automatic, digital photography didn't exist. The way you proved you owned the copyright is that you were able to show that you had the original piece of film with the original image on it. Now that there is no singular original piece of film in most cases, it gets much trickier to prove.
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Anonymous Coward, 4 Aug 2014 @ 11:57am

Re: Here's why you failed...
Government granted monopolies are not given. They are bought, and the price is much higher that $35.
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Richard (profile), 4 Aug 2014 @ 11:57am

Re:
Wait a second. I thought copyright law automatically granted us a copyright on our works? How is it the office can refuse any of it?

Copyright is only granted automatically on works that pass the threshold of originality and creativity required by the law. When registration ceased to be required it still continued as an option in order to preserve the livelihoods of the bureaucrats who performed it. As an incentive to register certain extra legal advantages were grsnted to registered works (otherwise no-one would have bothered).

If you attempt to register a work then the copyright office will consider whether it passes the thresholds of creativity etc before granting registration. Their failure to register this work can thus be construed as a legal opinion (although probably not a final one) that the work fails one of these tests.
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Violynne (profile), 4 Aug 2014 @ 12:02pm

Re: Re:
Not sure why this is an issue for the office. If the law grants this right by default, then all registration should be approved by default.

As for the court ruling, that's expected, since Fair Use is a case-by-case basis.

I look at it this way: anyone willing to use the copyright system for such nefarious things as a tweet deserves to have their claims disputed.

It's a ridiculous system. While your post may have been tongue-in-cheek, the reality is people are abusing this law for such idiotic things.

The law needs to revert to the process of register first, then release.

Which means your tweet would be in the public domain unless you registered it first.
;)
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Anonymous Coward, 4 Aug 2014 @ 12:02pm

Re: Re:
"the threshold of originality and creativity" can be defined as the amount of money paid to get enough members of congress to agree with you.
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Anonymous Coward, 4 Aug 2014 @ 12:10pm

You should take a picture of your haiku and send it in to the copyright office.
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Anonymous Coward, 4 Aug 2014 @ 12:20pm

Re: Re: Re:
Copyright for the most part is effectively pyrite. It in and of itself is worthless without a large amount of money, resources, and influence behind it to enforce it and then it is only an excuse for the wealthy to exert the power of that wealth on others.

Consider the individual commercial artist trying to make a living by employing his craft. He must work hard to build a reputation for his work in order to get clients to hire him. Now consider that someone infringes on something he has produced and uses it for something that was never authorized or negotiated. Does he have the right to sue for damages? Legally, sure. However, to be successful, it is likely going to require the aid of an expensive lawyer to handle the claim and will be a lengthy expensive battle that may or may not be successful. Furthermore, consider what happens to his future business when he gets the reputation as someone who is willing to sue clients. People think incorrectly that copyright (as well as other forms of IP) are designed to protect the little guy. That is exactly the opposite.
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Joe Gratz, 4 Aug 2014 @ 12:29pm

Hi. Registration practice geek here. Did you get Copyright Office correspondence rejecting your application? Could you post it?
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Teachingaway (profile), 4 Aug 2014 @ 12:40pm

Re:
I second that request! Post the Copyright Office rejection.
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Gabriel J. Michael (profile), 4 Aug 2014 @ 2:01pm

Link to correspondence
I just scanned it. Here's a link:

https://topromotetheprogress.files.wordpress.com/2014/07/tweet_reg_denied.pdf
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Gumnos (profile), 4 Aug 2014 @ 2:32pm

Re: Link to correspondence
“We must inform you that publication of our rejection letter constitutes an infringement of our copyrights on said letter (see Monopoly Media, Government, et al. vs. the People, 1998). Please remove the infringing material(s), along with all related links in both search engines and internet web pages. If we do not receive confirmation at allmine@uspto.gov before the 1st of September, 2014, we will be forced to bring the matter before the courts. Thank you for your immediate capitulation.

Sincerely,

—Vested Interests”
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That One Guy (profile), 4 Aug 2014 @ 2:34pm

There's your problem
You didn't include any mention of computers or the internet, using those magic words gets you an automatic approval.
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That One Guy (profile), 4 Aug 2014 @ 2:35pm

Re: Re: Link to correspondence
... anyone else have to read this one a few times to try and figure out whether it's real or not? At this point it's rather hard to tell.
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Gabriel J. Michael (profile), 4 Aug 2014 @ 3:12pm

Re: Re: Re: Link to correspondence
Well, works of the federal government are ineligible for copyright, so thankfully we're not at this point yet. State government is another story.
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Nop (profile), 4 Aug 2014 @ 6:07pm

Re:
And Hitler was a vegetarian, which is an amusing & useful bit of ammo sometimes.
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Gene Poole, 4 Aug 2014 @ 11:42pm

Is it as simple as facts?
Facts are not copyrightable, no matter how creatively or cleverly you might happen to state them. Could it simply be that the copyright office saw your submission as a statement of said fallacy and as such not valid for copyright protection?

I mean I've never heard of the monkey bar fallacy but has it been stated elsewhere, even if in a different format? Remember, stating "It's as hot as your mom's panties out here" might be a creative expression and never once copyrighted, but it's a varied statement of "it's hot out", which is a fact and not covered by copyright.

It could simply be that the monkey bar fallacy is just an obvious statement of facts.
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Antsan (profile), 5 Aug 2014 @ 4:20am

Re: Re:
Yeah, because using fallacies to feel superior to other snobs is so cool
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Antsan (profile), 5 Aug 2014 @ 4:25am

Re: Re: Here's why you failed...
That falls under "lobbying fees"
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Barry Kidd, 5 Aug 2014 @ 4:32am

For Whatever Reason
For what ever reason, none was ever given so I have always assumed it was just a case of the ass buy a government employee, in 2006 a group of photos I submitted was once rejected by the copyright office.

I resubmitted the same group of photos and they were accepted. One of which became my highest earner and drew, by far, the highest licensing fees of any photo that I have.

To this day I have never been given a valid reason why there were rejected but in the end after 2 or 3 attempts just stopped asking.
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Gabriel J. Michael (profile), 5 Aug 2014 @ 5:23am

Re: Is it as simple as facts?
The denial letter indicated that I didn't have the "minimum amount" of material to qualify for a copyright, although it also did mention the idea/expression dichotomy. As someone else pointed out, I think the idea is know by other names, such as "Hitler ate sugar" or the "association fallacy."

I actually did Google searches for "monkey bar fallacy" prior to the submission to ensure it wasn't widely used in order to avoid them thinking I was trying to control the use of a phrase. (I couldn't find any uses.)
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Gene Poole, 5 Aug 2014 @ 8:25am

Re: Re: Is it as simple as facts?
Minimum amount. That's interesting. I don't think that there's anything stating that content has to be of a specifiable length before it counts as content. As you mentioned haikus are probably copyrightable.

Oh well. If only our tongues were made of glass etc.
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Anonymous Coward, 5 Aug 2014 @ 9:08am

Just add it to urban dictionary.
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John Fenderson (profile), 5 Aug 2014 @ 9:50am

Re: Re: Copyright in photographs?
Even if there was copyrightable expression, your use falls clearly and squarely into the "fair use" bucket.

Not to derail the discussion into a GI one, but it's funny -- when I see that yogurt, the inclusion of "Greek" strikes me as useful and descriptive: it's the type of yogurt. It would never have occurred to me that it could actually indicate a country of origin. Greek yogurt, french toast, italian soda, and all that. It would be a shame if everyone had to start appending "-style" onto all those things.
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Teachingaway (profile), 5 Aug 2014 @ 1:23pm

Re: Link to correspondence
Thats some circular reasoning.

1. "Copyright protects "original works of authorship"...
2. Original works of authorship must contain.... copyrightable material.

Anyway, try changing the title from "Tweet #452" to "Poem #452", then add some line breaks and file it again.

Monkey bar fallacy:
a bad person using something makes it bad.
E.g., users of monkey
bars include:
children, TERRORISTS
#tor

I bet you that gets registered.
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