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Why Twitter is not seeing the funny side to copying tweets

Twitter has been attracting attention for taking down tweets that plagiarise jokes. But how much copyright protection do short jokes have?

twitter20takedown300.jpgTwitter’s approach to IP has been attracting attention this week. The Twitter account @PlagiarismBad reported in a tweet that Twitter is cracking down on people copying tweets. A number of tweets were deleted for copying this joke: “saw someone spill their high end juice cleanse all over the sidewalk and now I know god is on my side”.

The Verge reported that it turns out freelance writer Olga Lexell had made a DMCA request to Twitter to have the tweets removed.

She explained in a tweet (pictured top right): “For everyone asking, I simply explained to Twitter that as a freelance writer I make my living writing jokes (and I use some of my tweets to test out jokes in my other writing). I then explained that as such, the jokes are my intellectual property, and that the users in question did not have my permission to repost them without giving me credit.”

Intriguingly, Twitter marks the deleted tweets with a notice that the tweet “has been withheld in response to a report from the copyright holder”. Given that Lexell confirmed that the offending tweets had been removed without Twitter asking any follow up questions it seems a bit presumptuous to state the complainant is the copyright owner.

Although the issue has been attracting a lot of attention in the past few days, The Next Web was quick to point out that Twitter has not just started removing copied jokes, and that it has been deleting tweets for a long time. Twitter’s Copyright and DMCA policy is here.

But the news does throw up some interesting questions about whether tweets should get copyright protection. Fortunately, The IPKat blog had a good analysis of how different geographies treat copyright protection for 140-character phrases.

The blog said that in the EU a 140-character phrase could be considered sufficiently original to be eligible for copyright protection. The CJEU held in its landmark Infopaq decision that a work or a part thereof may be protected by copyright provided that it is original. An 11-word newspaper article extract was at issue in the case.

IPKat noted the situation is less clear in the US. The Copyright Office notes that “words and short phrases such as names, titles, and slogans” are not eligible for claims of copyright. However, the blog said some case law supports the view that statements that are brief (such as a joke on Twitter) may have the required level of originality for copyright protection.

The blog said that the question in both jurisdictions would become whether the fair use doctrine would apply, given the fact that some Twitter accounts copy tweets for commercial reasons.

It should be noted that the problem of jokes being stolen did not start with Twitter. As long as humans have been making jokes, other comedians have been copying them. Slate last year published a good analysis of the copyright implications in comedians stealing other comedians’ jokes. Many famous comedians such as Chris Rock, Carlos Mencia and Dane Cook have been accused of stealing jokes at some point.

The Slate article said: “Copyright law defends the expression of an idea, but not the idea itself. So even if somebody stole your joke about bad airline food, there’s little you can do if that person tells the same joke with ­­- slightly differently wording ­ no one owns the idea of mocking bad airline food. And even when a comedian does have a legal basis to accuse somebody of copyright infringement, it can be expensive to do anything about it.” Slate cited researchers who could not find a single instance of one comic suing another for copyright infringement.

The article notes an informal set of rules among comedians, such as if two comics come up with similar jokes the first to tell it on television gets ownership. Those who do not follow the rules can expect repercussions. As one comedian told the researchers: “The only copyright protection you have is a quick uppercut.”

This is not the first IP issue that the advent of Twitter has thrown up. Many question what kind of trade mark protection is available to users of Twitter hashtags. Managing IP covered this issue in an IP Clinic in November last year. We also interviewed Twitter’s trade mark counsel Stephen Coates in May this year. (Note you will need to log in or take out a free trial to access both of these articles).

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