Is republication of Mark Cuban’s tweet on Twitter non-infringing? Almost certainly it is.

Mark Cuban asks:

Here is a question for all you legal scholars out there. Is a tweet copyrightable? Is a tweet copyrighted by default when its published ? Can there possibly be a fair use exception for something that is only 140 characters or less ?

Well, sure, a “tweet” might be protected by copyright. The more creative it is, the more powerful is the protection. Cuban wouldn’t be wondering whether a 140 character poem by William Carlos Williams could be protected by copyright.

The question would only come up, though, if the author of the tweet was claiming someone had infringed his copyright. If Cuban, for example, claimed ESPN were infringing the copyright in his tweet, I strongly suspect the use would be a non-infringing fair use. Nevertheless, my ultimate conclusion would require consideration of the specific message Cuban is talking about and application of the specific facts in dispute under the appicable analysis:

(1) What is the nature and character of the allegedly infringing use? The more creative it is in its own right or the more it is an instance of the type of expression protected by the First Amendment (journalism or political speech, for example), the more likely it is to be a non-infringing fair use. The fact ESPN, an outlet for sports journalism, would be transmitting the words of Mark Cuban, the owner of a sports franchise (the Dallas Mavericks of the NBA), makes it seem more likely ESPN is engaged in legitimate journalism . . . , but

(2) What is the nature of the copyrighted work? The more creative or journalistic or political the expression, the less likely use of it without permission will be fair use. And the fact the work is available anyway would cut in favor of ESPN’s use of it being a fair use. This factor is almost impossible to determine based on Cuban’s hypothetical question. There can be 140 words that are as creative and expressive as anything can be (think Shakespeare or William Carlos Williams), or the 140 words might be utterly an utterly generic report about facts Cuban is passing on, or the 140 words might be mostly lifted from someone else. So which way and how hard this factor would cut on this hypothetical is without examining the specific words difficult to tell. It is, nonetheless, difficult to believe much creativity would be produced by Mark Cuban in a tweet. Moreover, the fact Cuban has already transmitted it via Twitter to everyone that follows him indicates that he doesn’t have that strong an interest in controlling the use of the words.

(3) How much of the copyrighted work is taken? Assuming ESPN takes the entire 140 characters, I suppose this factor cuts against ESPN’s claim of fair use, but, of course, the brevity of the entirety (under factor 2) cuts in favor of fair use, so in the abstract the two factors nullify one another. This is one reason hypothetical questions are useful, but only of limited use, in answering legal questions. One can only take abstract hypotheticals so far. 140 characters written by Shakespeare in a play are probably very different than 140 characters written by Mark Cuban in a tweet, but they might not be.

(4) How much does the allegedly infringing work affect the market for the copyrighted work? Is there a market for Mark Cuban’s tweets? It’s hard to believe there might be.

In short, I’d advise Cuban to be very light-hearted and laid back about ESPN republishing his tweets. If he really thinks he’s got something so worthwhile he should have the exclusive right to its commercial value, he shouldn’t have put it out on Twitter in the first place.

Mr. Potato Head, Esq.

E-Commerce Times reports that “Hasbro has dropped its lawsuit against the makers of a popular online version of board game “Scrabble.” As reported last summer by the New York Times, “Looking to cut down its main competition and most high-profile copycat in the growing market for social gaming, Hasbro . . . sued the two Indian brothers behind the popular Web game Scrabulous, which has more than half a million regular users on the social network Facebook.”

Given the boost to Scrabble’s sales provided by Scrabulous’s popularity, many had wondered at the wisdom of Hasbro’s lawsuit. At the time, Josh Quitner wrote, “[A]s a tech writer and life-long student of what passes for Internet economics, I’m baffled. Is Hasbro just a stupid Potato Head? Or is this a brilliant game of Stratego?”

Mike Masnick explains:

It’s difficult to see how Hasbro could have handled the Scrabulous situation any worse. Scrabulous, of course, was a Scrabble-like game made for Facebook, which quickly became one of the most popular apps on that social-networking site. Hasbro, which owns the rights to Scrabble in the U.S., didn’t have its own version, and rather than recognize an opportunity, it chose to shoot itself in the foot, suing the brothers who created it. The Scrabulous guys eventually came back with a slightly modified game, which became quite popular as well, while many angry Facebook fans organized boycotts of Hasbro products. Prior to that, of course, the attention brought about by Scrabulous had resulted in a renaissance for the game, leading many people to go out and buy physical Scrabble sets. Yes, Hasbro took a situation that was driving more sales of the board game, and turned it into one where thousands of people were boycotting its products.

Back when Hasbro filed the lawsuit, Barry Nagler, Hasbro’s General Counsel, had explained that “Hasbro has an obligation to act appropriately against infringement of our intellectual properties.”

I’ve said it before and I’ll say it again: being a good lawyer isn’t just a matter of knowing and enforcing the law. It’s a matter of knowing and using the law to advance the best interests of your clients. The mere fact your client’s intellectual property is being “infringed” does not mean that your client’s best move is to go out and try to crush the infringer.

How can something new come entirely from old things?

I’ve written before (here and elsewhere) about Girl Talk, the name under which Greg Gillis records and performs his aural collages, made up of hundreds of samples of pop recordings re-worked by him through contemporary technology into what can only be considered new songs. Gillis continues to get attention as he makes his way on tour across the country, this week in Tuscon and Dallas. As I have previously pointed out, on its face, Gillis’s work seems to run afoul of legal authority which holds that the use for commercial benefit of any recorded sample, no matter how brief, constitues copyright infringement. As the Tuscon Weekly points out, Gillis is a little tired of hearing about this:

Gillis says he’s tired of the media characterizing his music as a “lawsuit waiting to happen,” yet he admits: “There’s definitely a component there of seeming like an outlaw, and I think that appeals to some people.” Girl Talk’s appeal, perhaps, speaks to the preoccupations of a new generation raised online–and he may be just the sort of celebrity it fosters.

And indeed, Gillis samples such litigation-happy groups as Metallica. Nevertheless, I suspect Metallica will not sue Gillis. Why? Because lawyers no you don’t sue people who have the strongest case on the question of law you are concerned about. In other words, Gillis poses the greatest risk to the legitimacy of the cases ruling that any sample, no matter how brief, is an infringement. Metallica, thus, would rather sue someone who sampled their music in some ham-fisted way that plainly did exploit the value Metallica has created. Metallica would win the lawsuit against such a defendant.

Gillis, however, really does seem to have transformed his raw materials into something entirely new. (You can hear for yourself by downloading his album here, for any price (even zero — itself an interesting move in legal terms).)

In fact, whether a work is “transformative” is, exactly, what is determinative in deciding whether its appropriation of copyrighted work is fair use or infringement. No one is going to listen to a Girl Talk “song” that samples a Metallica song as a substitute for the Metallica song. The Girl Talk song is something entirely new, even if it is made up of things entirely old. This focus on the “transformative nature” of an appropriating work comes from one of those rare law review articles that actually have an impact on the real world, although in this case it was by a judge, Pierre Leval.