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A copyright work in 140 characters? (Brands & IP Newsnotes - issue 1)

27 September 2015

It isn’t easy to keep your social media followers entertained with rafts of enthralling and hilarious new material.

However, if you’re in the business of writing comedy, your original work is the most precious thing you own. San Diego blogger Robert Kaseberg sued comedian Conan O’Brien for copyright infringement after several of Kaseberg’s tweets were slightly modified and repeated by O’Brien on his TV show.

Twitter has recently begun a more regimented process of removing tweets reproducing the ‘original’ work of others. Twitter has long had a raft of policies in place governing the removal of content which infringes IP rights. While under its copyright / DMCA takedown procedure this has traditionally covered images and video content, it seems that the site has begun to take more proactive steps to prevent the unlawful reproduction and publication of tweets.

There is little doubt that an original tweet (like a joke) which is the result of the author’s intellectual creation can qualify for copyright protection in the EU. Therefore a third party will require the consent of the author in order to reproduce it. Things are a bit more complicated in the US - although Twitter will probably be keen to adopt a uniform policy rather than having to carve up the way it reacts to these situations.

Simply ‘cutting and pasting’ an original tweet like a joke and claiming it as your own has to be an infringement whichever way you look at it. That’s why Twitter’s approach is perfectly understandable and why Kaseberg has launched legal proceedings.

Where a tweet does not meet the requirements for copyright subsistence, or where there is some doubt as to whether the copying is sufficiently substantial to infringe, there may be more doubt. Either way, normal and established principles of subsistence and infringement will apply. Tweets are no ‘special case’.

This article was first published in the Brands & IP newsnotes publication - issue 1.

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