21 Nov Can you trademark a tweet?

Safeguard your creativity with copyright

By Avv. Michele Capecchi, LL.M.

In my two previous articles on intellectual property (https://www.capecchilegal.com/protecting-intellectual-property/ and https://www.capecchilegal.com/who-owns-the-hashtags/), I encouraged copyrighting and trademarking. However, not everything that we post on our webpages or social media can be protected as a copyright or a trademark. You simply do not own everything you post online, from tweets to Facebook statuses. Whether you are a blogger, marketing strategist, artist or entrepreneur, to protect your intellectual property, you need to learn what can be protected and what cannot.

Take, for example, a media advertising agency that wants to copyright its posts on Twitter, especially those used to promote the launch of a new product or service for its clients. The agency asks, ‘Can I prevent other companies from using the same motto or slogan that I created and published first on my Twitter or Facebook page?’

We need to remember that the intellectual property (IP) rules that govern the protection of our creativity offline apply for what we publish online, too. This means that if you take a picture with all the hallmarks of originality that need to be protected by copyright laws, your picture will also be protected if you post it on Twitter.

Indeed, a few years ago, one of the world’s best-known press agencies published photographs originally posted to Twitter without the photographer’s permission and sold them to several newspapers. The photographer sued all involved and the court ruled that ‘Twitter’s terms of service do not give news agencies permission to publish photos without the permission of the owner of the Twitter account (although it does give users permission to “re-tweet” photos).’

Even if the rules that govern IP rights over the Internet are still evolving, this ruling reminds us that we should think twice before posting on Twitter (or taking from Twitter) or on any other social media, images owned by a third party, images of people, or anything that is too similar to a registered trademark or others’ copyrighted materials without permission.

However, your clever 140-character comment on Twitter that people re-post thousands of times is not ‘copyrightable’ just because you wrote it first. Most of the time that 140-character message is a mere description of facts, and like commercial slogans, it lacks the particular level of originality required by copyright laws. Furthermore, ‘size matters’ in copyright laws, and short sentences and phrases often do not meet the criteria for protection. Only when the message is clearly linked to the author, which occurs only in exceptional cases, have the courts ruled that a slogan was sufficiently original to receive copyright protection.

Additionally, we cannot prevent others from re-tweeting our posts. Twitter’s terms of service state that by ‘posting or displaying something on or through Twitter, you grant to the service a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods.’ This means that, although you own the content you post on one of these social media sites, you have granted a license to the site to use the content and for others to view and re-post your content.

Your creativity is one of your greatest assets. Think twice about how you share it.

Disclaimer: The information provided in this article does not constitute legal advice and should not substitute for counsel. The information is based on the opinion of an independent expert and does not claim to be complete or definitive.

Originally published by Michele Capecchi on The Florentine (http://www.theflorentine.net/lifestyle/2015/04/can-you-trademark-a-tweet/).