Scott vs New York Times: are tweets protected by copyright in the US?

Scott vs the New York Times: are tweets protected by copyright in the US?

The issue arose when a tweet posted by Anthony Olive Scott on twitter was published in an advert inside the New York Times on the 4^{th of January this year. Scott, a film critic tweeted: “You all keep fighting about?Wolf of Wall St.?and?Am Hustle. I’m gonna listen to the Llewyn Davis album again. Fare thee well, my honeys.” This was to promote the new Coen brothers film ‘Inside Llewyn Davis’. The film was nominated for and won several awards ranging from best actor to best cinematography.}

The New York Times subsequently featured an edited version of this tweet, which read:

“I’m gonna listen to the Llewyn Davis album again. Fare thee well, my honies.” Despite being edited so as to not break the rules concerning pre-Oscars negative campaigning

this tweet was used without Scott’s permission. The issue that has therefore manifested was whether Scott could have a claim for copyright infringement?

In the European Union, It was held in the European Court of Justice case Infopac (Case C-5/08) that copyright may subsist in a text extract of eleven words. Thus under EU standards Scott’s tweet would have been sufficiently original to attract copyright protection. Accordingly, unauthorized editing could be considered as a violation of his moral rights of integrity and an infringement of his copyright– however this issue did not occur in the EU but in fact the US.

The US Copyright Act 1976 grants copyright on publication to ‘original works of authorship’ finalised in ‘fixed forms of expression.’ This does not extend to names, titles, short phrases or expressions (see: http://www.copyright.gov/circs/circ34.pdf).

So does this mean that Scott would not be in a position to sue the advertisers for copyright infringement despite the fact they have clearly copied his tweet? Alternatively would New York Times be in a position to invoke the doctrine of fair use? It would seem this area of US law is controversial and this situation has highlighted it.

Rachel Pellatt – Southampton Solent University Law student who works one day a week at Lawdit